P.W. v. Wawanesa Mutual Insurance Company, 2019 CanLII 122731

Citation: P.W. vs. Wawanesa Mutual Insurance Company, 2019 ONLAT 18-007187/AABS

Tribunal File Number: 18-007187/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

P.W Applicant

and

Wawanesa Mutual Insurance Company Respondent

DECISION

Adjudicator: Poeme Manigat

APPEARANCES:

For the applicant: Jeton Memeti, Paralegal

For the respondent: James Schmidt, Counsel

Written Hearing on: May 30, 2019

OVERVIEW

1The applicant (“P.W”) was injured in an automobile accident (“the accident”) on September 24, 2017 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when her claims for benefits were denied by the respondent, Wawanesa Mutual Insurance Company.

2The respondent denied the applicant’s claims because it determined that the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule, therefore falling within the Minor Injury Guideline² (“MIG”). The applicant’s position is the opposite.

3If the applicant’s position is correct, then I must address the issue of whether the medical treatments claimed are reasonable and necessary.

4If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits, as prescribed by s.18(1) of the Schedule, and in turn, a determination of whether the claimed medical benefits are reasonable and necessary will be unnecessary.

ISSUES

5Did P.W sustain predominantly minor injuries as defined by the Schedule? Is her 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 a medical benefit in the amount of $2,630.54 for chiropractic treatment recommended by Finch Health Centre Inc. in a treatment plan submitted on April 18, 2018, and denied by the respondent on May 2, 2018?

II. Is the applicant entitled to a medical benefit in the amount $3,589.88 for chiropractic treatment recommended by Finch Health Centre Inc. in a treatment plan submitted on December 18, 2018, and denied by the respondent on January 4, 2018?

III. Is the applicant entitled to a medical benefit in the amount of $665.60 for physiotherapy treatment recommended by Finch Health Centre Inc. in a treatment plan submitted on April 4, 2018, and denied by the respondent on April 12, 2018?

IV. Is the applicant entitled to a medical benefit in the amount of $3,129.48 for psychological treatment recommended by Pilowsky Psychological Professional Corporation in a treatment plan submitted on April 5, 2018, and denied by the respondent on April 12, 2018?

V. Is the applicant entitled to a cost of examination expense in the amount of $2,200.00 for a psychological assessment recommended by Pilowsky Psychological Professional Corporation in a treatment plan submitted on February 20, 2018, and denied by the respondent on March 2, 2018?

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

VII. Is the applicant entitled to an award under Ontario Regulation 664, R.R.O. 1990?

RESULT

7I find that the applicant’s injuries fall within the MIG. It is therefore unnecessary to consider the reasonableness of the treatment plans or the issue of interest.

ANALYSIS

The Minor Injury Guideline

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.” The MIG defines in detail what these terms for minor injuries mean.

9Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.

10P.W argues that her injuries fall outside the MIG because of both physical and psychological injuries. The onus is on the applicant to show that her injuries fall outside of the MIG.³

Did the applicant sustain predominantly minor physical injuries?

Accident-related injuries - physical

11I find that the evidence establishes that P. W’s accident-related physical injuries are predominantly minor.

12The applicant submits that her pre-existing lower back and shoulder pain, as well as the injuries resulting from the September 24, 2017 accident, take her out of the MIG. The presence of P. W’s pre-existing condition is not disputed by the respondent. However, the respondent argues that the pre-existing condition does not take the applicant out of the MIG.

13Based on the evidence before me, I am not persuaded that the existence of a pre-existing condition warrants taking the applicant out of the MIG. The fact that P.W has a pre-existing condition does not mean that the applicant’s accident-related injuries cannot be treated within the MIG. To fall outside the MIG, the applicant must demonstrate that her accident-related injuries cannot be properly treated within the MIG, due to the pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the MIG.

14I am satisfied that the applicant has established that she has a pre-existing condition. However, I have not been presented with persuasive evidence supporting the proposition that the pre-existing condition will prevent P. W’s injuries from being properly treated within the MIG.

15It is noteworthy to state that P. W’s lower back and shoulder pain dates back to 7 years before the accident. Dr. Taromi⁴ opined that P.W still has symptoms related to her low back and shoulder pain, but that it would not prevent her from achieving maximum medical recovery within the MIG. I find this diagnosis reasonable and persuasive.

16The applicant argued that Dr. Taromi’s report acknowledges that she has pre-existing back pain and left-side hip pain. Nevertheless, Dr. Taromi maintains that the pre-existing pain does not prevent P.W from achieving maximum medical recovery within the MIG – the doctor does not provide a rational for this opinion.

17Dr. Taromi reports the following regarding the physical examination completed for P.W: “Axial skeleton showed normal curvature in cervical, thoracic, and lumbar spine. Upper and lower extremities showed normal curvature with no atrophy, deformity, or contracture. Spine range of motion was full in all cardinal directions with end range pain with side flexion of the neck and side flexion of the lower back. […] There was no atrophy over paravertebral muscles and there was no spasm. There was no atrophy over rotator cuff either.”

18Dr. Taromi also notes that P. W’s bilateral shoulder shows full range of motion with pain over the scapula, and that the applicant’s rotator cuffs were strong bilaterally with no impingement. He also reported that P. W’s range of motion for the hips was full in all cardinal directions.

19Dr. Taromi’s findings are substantiated as they are based on the physical assessment that he completed, as well as on a review of the medical evidence. Dr. Taromi finds that the injuries directly related to the subject motor vehicle accident are soft tissue sprain and strain of: cervical, thoracic and lumbar spine, bilateral shoulders and right hip. He further noted that there was no fracture and no signs or compelling evidence of complicating factors.

20I find Dr. Taromi’s report conclusive. His findings are in line with Dr. Teitalbum’s (P. W’s family physician) and Mr. Andrew Haluskay’s (treating Chiropractor), who reported the applicant’s injuries as sprains and strains.

21The applicant submits that Dr. Taromi’s report is outdated and inaccurate. The applicant’s rationale for such a claim is that the respondent did not submit treatment plans and medical reports to the Insurance Examination (IE) assessors for review. The said documents were received after the IE reports had been generated. In certain circumstances, failing to request a review of medical documentation by IE assessors – when received after the IE reports are generated – may be problematic. If new medical information reveals compelling evidence that warrants a review by the IE assessors, it is incumbent upon the respondent to request this review. However, it is incorrect to expect the respondent to request a review upon receipt of all new medical information as the legislator has not imposed such an obligation on the respondent.

22The respondent’s decision to request their IE assessors to review new medical documentation is discretionary. This discretion must be exercised cautiously and in good faith. The respondent has a responsibility to review new medical documentation provided by the applicant objectively, and presumably in the present case it has done so. For the above reasons, I do not find that the respondent was at fault for failing to request that their IE assessors review new medical documentation provided by the applicant. The totality of the evidence contained in all the documentation before me is what I considered to determine if the applicant’s injuries fall within the MIG.

23The applicant has not directed me to any specific inaccuracies in Dr. Taromi’s report. My review of the applicant’s submission confirms that she disagrees with Dr. Taromi’s findings and that they have a different position. However, there are no inaccuracies that were identified.

24Furthermore Dr. Chung⁵ confirmed that the x-ray results of P. W’s cervical spine, completed November 10, 2017, revealed the following:

a. No acute fracture or malalignment;

b. Posterior elements are intact;

c. No instability on flexion and extension;

d. Excursion is limited;

e. Mild to moderate DDD; and

f. No acute osseous abnormality.

25X-rays⁶ of P. W’s pelvis and lumbosacral spine taken the date of the accident confirmed the following:

a. Pelvis is intact;

b. No pelvis fracture seen;

c. Osteophytosis noted in both right and left acetabulum;

d. Lumbosacral spine alignment preserved;

e. No lumbersacral spine fracture seen; and

f. Anterior osteophytosis noted.

26Dr. Chung and Dr. Hayeems completed x-rays of P. W’s - cervical spine, pelvis and lumbosacral spine – taken at different times, report that she has no fracture, alignment problems or acute abnormality. These findings in addition to Dr. Teitalbum and Mr. Andrew Haluskay’s description of the injuries, suggest that the applicant’s injuries are minor in nature and therefore can be treated within the MIG.

27The applicant resumed regular hours at her place of employment and performed her regular duties as of November 1, 2017. The applicant reports having difficulty with heavy duty activities at her employment. Notwithstanding, the difficulties that she reported experiencing at her work, she continues to perform her regular duties at work.

28The fact that the applicant has been able to resume her employment on a regular basis is pertinent to assessing the severity of her injuries. This factor must be considered with the remainder of the evidence before me. To her credit, the applicant made a commendable effort to resume her employment on a regular basis, which I acknowledge. However, the fact that she has been able to return to work, on a regular basis within a reasonable period, supports the proposition that her injuries resulting from the accident are minor in nature.

29The applicant submits that she was forced to resume her employment due to financial hardship. There is no evidence before me to substantiate the applicant’s financial hardship. The applicant further submitted that she used multiple sick days at work to cope with her pain. There is no evidence before me, such as employment records, to validate that the applicant resorted to sick days at work to cope with her pain. These explanations may assist in understanding what occurred with the applicants’ employment and pain management, but they need to be supported by objective evidence.

30The applicant could be experiencing pain due to the motor vehicle accident; however, I find that her pain is caused by clinically associated sequelae resulting from the accident. There is no evidence before me to confirm that the applicant’s pain is aggravated by her pre-existing condition to a point that would prevent her from achieving maximum medical recovery within the MIG. As well, the applicant is not claiming that she is suffering from chronic pain or chronic pain syndrome.

Accident-related injuries - psychological

31The applicant submits that her psychological injuries take her out of the MIG. The applicant relies on Dr. Pilowsky’s⁷ Treatment and Assessment Plan along with Dr. Sagrati’s psychological report⁸.

32The applicant visited her family doctor (Dr. Teitelbaum) on September 25, 2017, November 1, 10, 22 and 29, 2017. Most of her complaints when visiting her family doctor pertains to physical pain. On November 29, 2017 Dr. Teitelbaum noted that the applicant was nervous about driving. On May 29, 2018 Dr. Teitelbaum reported that the applicant complained about anxiety.

33At no point did Dr. Teitelbaum feel it was necessary for the applicant to seek psychological treatment. Dr. Teitelbaum did not refer the applicant to a psychologist or psychiatrist despite examining the applicant on several occasions since the accident.

34The applicant initially agreed to provide the clinical notes and records (CNRs) of Dr. Sagrati. However, subsequently the applicant stated in her reply submission that these CNRs do not exist. I find it problematic that Dr. Sagrati made a detailed psychological assessment of the applicant and created a psychological report but does not have a single clinical note and record of her interaction with the applicant.

35In the Treatment Plan submitted by Dr. Pilowsky dated February 14, 2018, the applicant reported having accident related nightmares. The applicant also reported to Dr. Saunders that she had accident related nightmares. There is no evidence before me confirming that the applicant reported accident related nightmares to Dr. Teitelbaum. Despite reporting having such nightmares to Dr. Pilowsky and Dr. Saunders, the applicant denied having any nightmares while being assessed by Dr. Sagrati. On page 10 of 16 of Dr. Sagrati’s report, at paragraph 4, Dr. Sagrati states the following “The applicant denied the presence of nightmares.” I find the applicant’s psychological complaints inconsistent and contradictory at times.

36Dr. Sagrati states the following at page 13 of her report “In my professional opinion as a Psychologist, the applicant suffers a substantial inability to resume her work duties to previous extents, by virtue of her psychological impairments and limitations, which include depressed mood.” This definitive statement is refuted by the very fact that the applicant has resumed her regular work duties since November 1, 2017. This statement is not reasonable given the factual evidence that the applicant resumed her regular employment 5 months prior to Dr. Sagrati’s psychological assessment. I am not persuaded by Dr. Sagrati’s psychological report. I am not persuaded that her evaluation of the applicant’s symptoms is an accurate assessment of her condition.

37Dr. Sagrati stated that the applicant’s prognosis at this time is undetermined. Despite failing to provide a prognosis for the applicant, Dr. Sagrati is adamant that the applicant suffers a severe psychological impairment and needs treatment. I find it difficult to reconcile these two propositions. One would expect Dr. Sagrati to provide a prognosis given the numerous psychological impairments that she purportedly observed from assessing the applicant and that the need to see how the applicant responds to certain treatment is not an impediment to making a prognosis.

38Based on my review of the evidence before me, I find that the applicant failed to satisfy her onus to show that her psychological injuries fall outside of the MIG.

CONCLUSION

39For the reasons outlined above, I find that:

i. The applicant sustained predominantly minor injuries that fall within the MIG. Accordingly, she is not entitled to the treatment plans claimed in this application.

ii. There is no entitlement to overdue interest or an award under O. reg. 664.

iii. The 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. 4Dr. Taromi Report, dated November 29, 2017
5. 5Dr. Chung, X-Ray Results dated November 10, 2017
6. 6Dr. Eran Hayeems, X-Ray Results dated September 24, 2017
7. 7Dr. Judith Pilowsky Treatment and assessment Plan OCF-18
8. 8Dr. Sandra Sagrati Psychological Report, dated April 5, 2018