E.G. v. Wawanesa Insurance, 2019 CanLII 110127

E.G. vs. Wawanesa Insurance, 2019 ONLAT 18-010183/AABS

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:

E. G.

Appellant

And

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Appellant:

Elvis Viskovic, Paralegal

For the Respondent:

Paul Sykes, Counsel

Heard: In Writing

May 13, 2019

OVERVIEW

1The applicant ("E.G.") was involved in a motor vehicle accident ("the accident") on September 19, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ ("the Schedule").

2E.G. applied for benefits from the respondent ("Wawanesa") and applied to the Licence Appeal Tribunal (the "Tribunal") when her claims were denied.

3Wawanesa argues that all of E.G.'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")². E.G.'s position is exactly the opposite.

4If Wawanesa is correct, E.G. is then subject to the $3,500.00 limit on 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.

5I must decide whether E.G.'s injuries are predominantly minor as defined by the Schedule and thus subject to a $3,500 treatment limit, and if they are not, I must determine her entitlement to the medical benefits in dispute.

ISSUES

6The issues in dispute are as follows:

a. Did E.G. sustain predominantly minor injuries as defined under the Schedule?

b. Is the treatment plan in the amount of $1,725.32 for chiropractic treatment recommended by East to West Wellness in a treatment plan ("OCF-18") submitted on October 11, 2016 and denied on November 3, 2016, reasonable and necessary?

c. Is the treatment plan in the amount of $1,979.57 for chiropractic treatment recommended by East to West Wellness in an OCF-18 submitted on December 14, 2016 and denied on January 31, 2017, reasonable and necessary?

d. Is E.G. entitled to interest on any overdue payment of benefits?

RESULT

7Based on a review of all the evidence put before me, I find that E.G.'s physical and psychological injuries meet the definition of 'minor' under the Schedule, it is therefore unnecessary for me to consider whether the treatment plans are reasonable and necessary or determine whether interest is payable.

LAW

Minor Injury Guideline

8The Guideline establishes a framework for the treatment of minor injuries. The term "minor injury" is defined in subsection 3(1) of 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 terms "sprain", "strain", "subluxation", and "whiplash associated disorder" are also defined in subsection 3(1).

9The onus is on the applicant to show that her injuries fall outside of the MIG.³

10E.G. argues that her injuries go beyond the definition of "minor" because she has sustained physical and psychological impairments and chronic pain, all of which remove her from the MIG.

E.G. does not have a pre-existing medical condition that removes her from the MIG

11E.G. submits that her injuries themselves exceed the definition of "minor injury" in s. 3(1) of the Schedule because she has pre-existing injuries/impairments, that were exacerbated by the subject accident, and that this removes her from the MIG. I disagree.

12Section 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 be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

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.

13The standard for excluding 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: it is in fact "intended and expected that the vast majority of pre-existing conditions will not do so." The MIG clearly requires that a pre-existing condition must be shown with "compelling evidence" to prevent maximal recovery within the cap imposed by the MIG⁴.

14The medical evidence shows that E.G. suffers from pre-accident left knee osteoarthritis. Clinical notes report documented findings dating back to March 4, 2013, where an MRI report found "marked lateral patellar subluxation and marked osteoarthritis".

15E.G. made no complaints to Dr. Yang about sustaining a knee injury in the subject accident. In fact, there were no complaints of any accident-related exacerbation of her pre-existing left knee impairments to any treatment providers. The evidence clearly shows the left knee sustained no accident-related injuries/impairments or exacerbation. As such, this pre-existing condition would not prevent E.G. from achieving maximum medical recovery from the accident-related injuries to her neck and right shoulder.

16As a result, I find the pre-existing left knee impairment does not remove E.G. from the MIG.

E.G. did not sustain physical injuries that remove her from the MIG

17Although E.G. has provided medical evidence which confirms she sustained accident-related injuries, none of the evidence shows that her injuries fall outside the MIG. In addition, the evidence submitted by Wawanesa confirms that E.G.'s physical injuries fall within the MIG.

18My finding that E.G.'s physical injuries fall within the MIG is supported by the following evidence.

(i) The disability certificate ("OCF-3") completed by Dr. Marco Curcio, a chiropractor, dated October 8, 2016, confirms E.G. has soft tissue injuries. The OCF-3 is consistent with the complaints seen in E.G.'s treatment records;

(ii) E.G. first saw her doctor about her injuries on October 8, 2015, weeks after the accident. On October 8, 2015, Family Physician, Dr. Min Kang Yang diagnosed E.G. with physical injuries – "rt [right] shoulder and mild neck strain";

(iii) Although E.G. made occasional complaints about neck and right shoulder pain to Dr. Yang, there are no accident-related complaints whatsoever after August 12, 2016. In his notes dated November 10, 2015, Dr. Yang wrote that E.G.'s "shoulders were feeling much better and neck pain had resolved" and he also stated that E.G. had "no more anxiety"; and

(iv) On behalf of Wawanesa, Dr. Noah Levine, a physician, assessed E.G. on April 29, 2016. Dr. Levine diagnosed E.G. with "soft tissue injury/strain affecting the neck, consistent with a WAD I-II injury and strain affecting the right shoulder trapezius muscle". Dr. Levine found that E.G.'s injuries were minor in nature. I agree.

19The medical evidence submitted by E.G. and Wawanesa confirm that E.G.'s physical injuries are consistent with those that would be defined as 'minor'. The evidence supports and I find that E.G. suffered soft tissue injuries as a result of the accident. E.G. has therefore failed to persuade me that the physical injuries she sustained in the accident require treatment beyond that provided in the MIG.

E.G. did not sustain psychological injuries that remove her from the MIG

20For the reasons that follow, I find that E.G.'s own evidence does not support that her psychological impairments would remove her from the MIG. My finding is based on the following:

(i) The evidence shows that E.G. reported 'psychological' complaints, ie. "anxiety" to Dr. Yang, regarding family issues. It's noted that at the November 10, 2015 visit, E.G. reported not having any more anxiety. E.G. also reported to Dr. Moshiri that psychologically and emotionally the accident did not have any adverse effect on her activities of daily living; and

(ii) E.G. relied on the OCF-3 of Dr. Curcio, to support that she has a psychological injury that would remove her from the MIG. However, I put little weight on the OCF-3 of Dr. Curcio because psychological diagnoses are beyond a chiropractor's area of expertise. In the OCF-3 Dr. Curcio lists "other anxiety disorders" as part of the injury and sequelea E.G. suffered as a result of the accident. I was not persuaded by this evidence.

21Without the presence of an objective medical opinion providing a basis to indicate the existence of a psychological impairment that is not sequelae of minor injuries, I am unable to conclude that E.G. suffers from a psychological impairment that is not subject to the MIG.

22E.G. has not provided medical evidence to demonstrate that she is unable to recover under the MIG as a result of any psychological symptoms. Therefore, she has not met the onus of establishing her entitlement to psychological treatment beyond the MIG limits.

E.G. does not suffer from a chronic pain condition that would remove her from the MIG

23I find that E.G. does not have a chronic pain condition arising from the accident that places her outside of the MIG. Chronic pain, if established, removes a claimant from the MIG, because the prescribed definition of "minor injury" does not include chronic pain conditions.

24E.G. submits that due to her psychological injuries and "chronic pain" she suffers from chronic pain syndrome. E.G. contends she has not reached her pre-accident state, she still has functional impairments and has not recovered in the usual time with these types of injuries. Despite this, E.G. has not provided me with any medical opinion that supports a chronic pain diagnosis.

25E.G. asserts that she suffers from chronic pain syndrome based on the report⁵ of Dr. Leon Rivlin, Physiatrist. I disagree.

26I find that E.G.'s symptoms do not meet the criteria for chronic pain because:

(i) In his report, Dr. Rivlin does not specifically diagnose E.G. with chronic pain. Dr. Rivlin does not provide an analysis on the severity, frequency and duration of E.G.s pain or the functional impacts of her pain complaints; and

(ii) I find for chronic pain to take someone out of the MIG, there must be an affect on their functionality. A treating physician's mention of a chronic pain condition be it 'syndrome' or specific use of the term 'chronic pain' is not enough in establishing the impact on functionality. This opinion must be supported by medical evidence that establishes an applicant's functionality is impaired and that the chronic pain is the cause of the disability.

27I find that the E.G.'s functionality is inconsistent with chronic pain based on the following:

(i) E.G. takes very little medication and is currently not receiving treatment having last seen her family physician on November 18, 2016 with respect to her accident-related complaints; and

(ii) E.G.'s pain does not result in functional impairments as she continues to work as a personal support worker, she has resumed her activities of daily living, she is capable of engaging in housekeeping tasks, she is independent with respect to her personal care tasks and she continues to drive and attend church⁶;

(iii) E.G. did not miss any time off from work due to accident-related injuries/impairments and worked two jobs on a part- and full-time basis; and

(iv) Even if she has stopped working at one of her part-time jobs, the reasons were due to her left knee impairments and other health-related issues, and not because of any accident-related impairments.

28Based on the evidence before me, I am unable to find, on a balance of probabilities, that E.G. should be removed from the MIG because she has chronic pain, or that she suffers from chronic pain as a result of the accident.

CONCLUSION

29E.G. sustained predominantly minor injuries that fall within the MIG. Accordingly, E.G. is not entitled to payment for the treatment plans claimed in this application. Her application is dismissed.

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. 4Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, Part 4, "Impairments that do not come within this Guideline".
5. 5Independent Medical Assessment report dated September 1, 2017
6. 6As reported to Dr. Mohammad Nikkhou in his Psychological Report, dated December 29, 2017, at pages 14 and 15.