Tribunal File Number: 18-000054/AABS
Case Name: 18-000054 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:
R. D.
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
PANEL:
Brian Norris Adjudicator
APPEARANCES:
For the Applicant:
Nader Fathi, Paralegal
For the Respondent:
Paul Barnes, Counsel
HEARD:
In Writing on: August 7, 2018
OVERVIEW
1The applicant was injured in an automobile accident on May 29, 2017 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain medical benefits and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
2The disputed claims in this hearing are:
Has the applicant sustained a minor injury as defined under the Schedule as a result of the accident, and is therefore subject to the $3,500.00 funding limit on treatment?
Is the applicant entitled to the costs of examination in the amount of $2,200.00 for a psychological assessment recommended by Promed Rehab Clinic in a treatment and assessment plan dated September 19, 2107?
Is the applicant entitled to a medical benefit in the amount of $3,671.48 for psychological treatment recommended by Promed Rehab Clinic in a treatment and assessment plan dated November 7, 2017?
Is the applicant entitled to the costs of examination in the amount of $1,765.20 for a functional abilities assessment recommended by Dr. Thavarajah in a treatment and assessment plan dated December 27, 2107?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries as a result of the accident on May 30, 2017 fall within the Minor Injury Guideline (MIG) and are subject to the $3,500.00 funding limit on treatment.
4The applicant is not entitled to the disputed medical benefits as the treatment and assessment plans propose treatment outside the MIG.
5The applicant is entitled to the remaining $129.81 in treatment under the MIG. The respondent agrees that the applicant may incur treatment up to $129.81 and the respondent is liable to pay the service provider once it has been incurred and invoiced. Alternatively, the applicant may apply $129.81 to previously incurred treatment costs.
BACKGROUND
6The applicant was the driver of a vehicle which was struck from behind while stopped in traffic. The applicant was attended to by paramedics at the scene of the accident and declined transportation to the hospital. The following day, the applicant went to St. Joseph’s Health Centre and complained of back and shoulder pain. The applicant was diagnosed with soft tissue injuries, prescribed pain medication, and discharged.
7The applicant received treatment under the MIG, which the respondent funded, and now seeks funding for additional treatment beyond the MIG.
THE MINOR INJURY GUIDELINE (MIG)
8The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined by s.3 (1) of the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear.
9Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
10There are two avenues for the applicant to obtain medical treatment outside the MIG:
Establish the accident-related injuries fall outside the MIG – showing proof of a fracture, for example; or
Establish the applicant has a documented pre-existing medical condition which would preclude recovery within the confines of the MIG.
Did the applicant sustain any accident-related injuries which fall outside the MIG?
11The applicant claims a psychological injury and a gluteus intramuscular grade 1 tear and submits these injuries fall outside the MIG. The respondent submits the applicant‘s injuries are within the MIG because the applicant has not suffered a psychological injury as a result of the accident and because a grade 1 tear is captured within the MIG. \
12On a balance and for the following reasons, I find the applicant has sustained predominantly soft tissue injuries which fall within the MIG.
13First, the applicant’s claim that a tear automatically falls outside the MIG is rejected. The applicant submitted evidence confirming a gluteus intramuscular grade 1 tear. This is a partial muscle tear and a partial muscle tear is expressly included as an injury within the MIG.
14The applicant’s medical record does not support the claim the applicant has suffered a psychological injury as a result of the subject accident. The applicant relies on a psychological assessment report by Dr. Vitelli dated December 22, 2016 which was related to a previous accident on March 23, 2016. Any evidence of a psychological injury within this report cannot be attributed to the May 29, 2017 accident because the report occurred prior to the subject accident. The remaining evidence, which mostly contains the clinical notes and records from St. Joseph’s Health Centre, does not indicate the applicant suffered a psychological injury as a result of the accident.
15The psychological assessment report by Dr. R. Silverman, psychologist, commissioned by the respondent and dated November 30, 2017, acknowledges the applicant experienced some psychological symptoms following the accident. However, Dr. Silverman finds the symptoms were only temporary setbacks, mostly related to financial worries from not working, which were resolved when the applicant returned to work about two weeks following the accident. I have no other submissions or evidence before me to counter or discount Dr. Silverman’s findings.
Does the applicant have a documented pre-existing injury which would preclude recovery within the confines of the MIG?
16The applicant highlights several pre-existing medical issues in the submissions and I infer the applicant feels these pre-existing issues preclude recovery within the MIG. The respondent submits the applicant has not provided a qualified or compelling medical opinion that the applicant’s pre-existing issues would preclude recovery within the MIG.
17I agree with the respondent and find no compelling evidence to support the applicant’s claims that high cholesterol, hypertension, type 2 diabetes, a pre-existing left gluteal and lateral thigh pain, work-related shoulder injury in November 2015, and motor vehicle accident on March 23, 2016 preclude the applicant’s recovery within the MIG. In fact, outside of the applicant’s own self-reporting in the reports of Dr. Vitelli and Dr. Silverman, there is no evidence to conclude the applicant was ever diagnosed with these medical issues. Furthermore, the applicant’s submissions and evidence do not include any medical opinion that the applicant’s alleged pre-existing issues would preclude recovery within the MIG.
THE REMAINING FUNDING PROVIDED BY THE MIG
18The respondent submits the applicant has incurred $3,370.19 of the finding limit of $3,500.00 provided by the MIG. In its submissions, the respondent has offered the applicant the discretion to allocate the remaining funding to new or previously incurred treatment. I support this position and will incorporate it into my Order.
CONCLUSION
19The applicant’s injuries as a result of the accident are minor in nature and fall within the MIG. The disputed treatment and assessment plans are not payable because they propose treatment outside the MIG. No interest is payable because no payments were delayed or went overdue.
ORDER
20The applicant may incur treatment up to $129.81 and the respondent is liable to pay the service provider for it once it has been incurred and invoiced. Alternatively, the applicant may apply $129.81 to the cost of previously incurred treatment.
21The applicant’s appeal on all issues in dispute is dismissed.
Released: January 9, 2019
Brian Norris
Adjudicator