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:
P.S.
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Marisa Victor
Appearances:
For the Applicant:
Lisa Bishop, Counsel
For the Respondent:
Michael Unea, Counsel
Heard:
In writing June 10, 2019
REASONS FOR DECISION AND ORDER
OVERVIEW
1P.S., the applicant, was involved in an automobile accident on April 10, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). Wawanesa Mutual Insurance Company, the respondent, denied the applicant certain benefits. The applicant then applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.
2The respondent denied the applicant’s claims because it determined that his injuries fit the definition of “minor injury” prescribed by ss. 3(1) of the Schedule, and therefore fall within the Minor Injury Guideline (the “MIG”).
3The applicant’s position is that, as a result of pre-existing injuries, his injuries fall outside the MIG. If the applicant’s position is correct, then I must address whether the medical benefits in dispute are reasonable and necessary for the treatment of his injuries.
4If the respondent is correct, then the applicant is subject to a $3,500 limit on medical and rehabilitation benefits prescribed by ss. 18(1) of the Schedule. As the applicant has already exhausted those benefits, no further benefits would be payable.
ISSUES
5The following are the issues in dispute:
i. Did the applicant sustain predominantly minor injuries as defined under ss. 3(1) of the Schedule?
ii. Is the applicant entitled to a medical benefit in the amount of $234.00 for physiotherapy treatment recommended by Health-Pro Wellness in a treatment plan (OCF-18) submitted on August 4, 2017, and denied on August 21, 2017?
iii. Is the applicant entitled to a medical benefit in the amount of $2970.80 for physiotherapy treatment recommended by Health-Pro Wellness in an OCF-18 submitted on November 10, 2017, and denied on November 21, 2017?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6The applicant sustained predominantly minor injuries and is subject to treatment within the MIG. As the applicant has already exhausted the MIG limit, no further benefits are payable. The applicant is not entitled to interest as there are no overdue benefits owing.
THE MIG
7The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in ss. 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.” Subsection 18(1) of the Schedule provides for a cap of $3,500 for minor injury medical and rehabilitation benefits.
8Section 18 further provides that the $3,500 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 the insured person from achieving maximal medical recovery under the cap.
9The onus is on the applicant to prove on a balance of probabilities that his entitlement to medical benefits is not subject to the MIG.
ISSUE I: DID THE APPLICANT SUSTAIN PREDOMINANTLY MINOR INJURIES?
10I find that the applicant has suffered predominantly minor injuries in the accident. Further, he has failed to establish that he has pre-existing injuries that would prevent him from achieving maximal medical recovery such that he should be removed from the application of the MIG. His entitlement to benefits therefore falls under the MIG.
Applicant’s Evidence
11The applicant claims that he suffered the following injuries and symptoms as a result of the accident: whiplash associated disorder, neck pain, radiculopathy, muscle and tendon injury, back pain, shoulder and rotator cuff pain, and headaches.
12The applicant submits that he has a pre-existing shoulder injury that he sustained while at work in December 2015. He states that this initial shoulder injury in November 2015, resulted in pain radiating down his left hand and he required modified duties at work. He provided his family doctor’s notes for December 2015 as evidence. He states that post-accident, he experiences left side numbness, documented in the clinical notes of Health-Pro Wellness during the chiropractic assessments of April 10, 2017 and July 27, 2017. He also states he has a history of migraines. Both conditions, he says, were exacerbated by the accident. He states that he should be removed from the MIG as a result of these pre-existing injuries.
Respondent’s Evidence
13The respondent states that the applicant has failed to prove that he has pre-existing injuries that would prevent him from achieving maximal medical recovery within the MIG.
14The respondent argues that one medical note dated two years before the accident showing left shoulder pain, is insufficient to prove a pre-existing condition that would affect his accident recovery. The respondent states there are no other medical documents showing a pre-existing condition. Further, the disability certificate and treatment confirmation forms, both dated April 20, 2017 post-accident, disclose no pre-existing conditions. His chiropractic assessment on April 10, 2017 does not mention pre-existing conditions.
15The respondent states that the applicant did not complain of accident-related injuries to his family doctor. The respondent relied on the insurer’s examination (“IE”) by Dr. Darrin Milne, chiropractor, to show that the applicant’s injuries fall within the MIG. In Dr. Milne’s opinion, the injuries the applicant sustained are soft tissue injuries. The applicant’s self-reporting of pain was inconsistent with examination findings. He reports that he works as a full-time general labourer and missed no work as a result of the accident. Further, the applicant reports that he has returned to pre-accident housekeeping and personal care duties.
Analysis
16The applicant’s documented injuries consist of whiplash and soft tissue injuries. These all fall within the definition of minor injuries in the Schedule. In order to be removed from the MIG, he must show that he has pre-existing injuries that prevent him from achieving maximal medical recovery within the MIG. I find that the applicant has failed to establish that he has a pre-existing medical condition that would affect his recovery.
17I find that the evidence provided is insufficient to show that the applicant had an unresolved pre-existing shoulder injury. The applicant relies on limited medical documentation to support his previous shoulder injury. The applicant submitted one page of his family doctor’s records dated December 22, 2015. The note states that the applicant hurt himself at work and was placed on “light duties” in November 2015. He saw another doctor in Edmonton who suggested an x-ray, but the applicant did not go. The note reports no improvement in shoulder pain. The doctor provides samples of Vimova and suggests an ultrasound. There are no further family doctor records submitted to show whether the shoulder pain continued or resolved, whether the applicant sought other treatment or assessment such as an ultrasound, or whether the applicant continued taking medication. There is no information as to whether the applicant was taken off light duties at work or when. I do not find that similar symptoms complained of once in 2015 before the accident and after the accident in 2017 is enough to establish a pre-existing injury which would affect his recovery within the MIG.
18The applicant’s post-accident documents also do not refer to a pre-existing shoulder injury. The applicant reported to Dr. Milne that he works as a general labourer, missed no work after the accident and had no pre-existing WSIB claims or other injuries. He reported no prior history of the injuries complained of and no prior need for chiropractic or physical therapy. He also stated he was not on any medication. I find that the post-accident records do not support the existence of a pre-existing injury that prevents him from reaching maximal medical recovery.
19With regard to headaches, the applicant has not submitted any medical documentation showing that the applicant suffered from migraine headaches prior to the accident. The Schedule requires that the pre-existing injury be supported by medical documentation. As there is no such medical documentation, I cannot find that the applicant has established a pre-existing condition related to headaches that would affect his ability to reach maximal recovery.
20The applicant’s injuries are therefore confirmed as minor injuries and his entitlement to benefits falls within the MIG.
ISSUES II AND III: IS THE APPLICANT ENTITLED TO THE DENIED TREATMENT PLANS?
21The applicant has already used all the $3,500 in funds available under the MIG and has no further benefits available under the Schedule. I therefore do not need to consider whether the denied treatment plans are reasonable and necessary. The applicant is not entitled to the denied treatment plans for physiotherapy.
ISSUE IV: IS THE APPLICANT ENTITLED TO INTEREST ON OVERDUE AMOUNTS?
22As there are no overdue payment of benefits, the applicant is not entitled to interest on any overdue amounts.
CONCLUSION
23For the reasons above, the applicant’s injuries fall within the definition of minor injuries and his entitlement to benefits is subject to the MIG.
24The applicant is not entitled to the denied treatment plans for physiotherapy as he has already exhausted the $3,500 treatment limit within the MIG.
25As there are no overdue payment of benefits, the applicant is not entitled to interest.
Released: December 20, 2019
___________________________
Marisa Victor
Adjudicator