J. T. v. Wawanesa Mutual Insruance Company, 2019 CanLII 58163

Tribunal File Number: 18-002690/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:

J. T.

Applicant

and

Wawanesa Mutual Insruance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Joe Kositsky, Counsel

For the Respondent: Matthew J. Sutton, Counsel

HEARD in writing on: February 25, 2019

OVERVIEW

1The applicant was injured in an automobile accident on November 19, 2015 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant has 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:

1. Is the applicant entitled to receive weekly non-earner benefits (“NEBs”) in the amount of $185.00 per week for the period from May 19, 2016 to-date and ongoing?

2. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to a $3,500.00 funding limit as set out in s. 18 of the Schedule?

3. Is the applicant entitled to a medical benefit for services recommended by Humber River Physio and Rehab Inc. as follows;

a. $1,363.72 for a chiropractic treatment plan dated March 3, 2016; and

b. $1,462.72 for a chiropractic treatment plan dated July 11, 2016?

4. Is the applicant entitled to a medical benefit in the amount of $2,028.72 for psychological treatment recommended by Auxilium Wellness Centre in a treatment plan dated August 5, 2016?

5. Is the applicant entitled to costs of examination in the amount of $2,000.00 for a psychological assessment recommended by 101 Physio in a treatment plan dated November 24, 2016?

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

RESULT

3The applicant is unsuccessful on all issues.

BACKGROUND

4The applicant was the rear-seated passenger of a car which struck the side of another vehicle in a perpendicular fashion. The applicant was transported by emergency medical services from the scene of the accident to the hospital, where the applicant was examined and released after a few hours. The applicant visited Dr. M. Yacowar, family physician, about a week and a half after the accident and was diagnosed with soft tissue injuries, advised to take over-the-counter pain medication as needed, and to engage in rehab.

5The applicant initiated a claim for accident benefits. The applicant’s treatment facility, Humber River Physio and Rehab Inc., and the respondent characterized the applicant’s injuries as predominantly minor and falling within the Minor Injury Guideline (‘MIG”). The applicant completed treatment within the MIG and now disagrees with the characterization of the injuries, and seeks funding for treatment beyond the MIG limit of $3,500.00.

ENTITLEMENT TO A NON-EARNER BENEFIT

6The applicant is not entitled to a non-earner benefit because the applicant does not suffer from a complete inability to carry on a normal life.

7Pursuant to section 12 of the Schedule, the applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for a NEB. The applicant claims entitlement to NEBs because the applicant returned to work on modified duties, struggles with housework, and claims a drastically altered social life. The evidence does not support these claims.

8The applicant returned to work two days following the accident, and there is no evidence the applicant has missed more than one day of work following the accident. I find the applicant’s return to work is enough to prove the applicant does not suffer from a complete inability to carry on a normal life. Nevertheless, I will continue my analysis on entitlement to NEBs as there are additional reasons for my decision.

9The applicant’s Disability Certificate dated January 7, 2016 (“OCF-3”) is ambiguous regarding the applicant’s level of impairment or lack thereof, and the applicant is not automatically entitled to the benefit simply because the box indicating the applicant meets the NEB disability test is checked. The latter is underscored in cases where the Disability Certificate is unclear or contradictory, such as the applicant’s. The applicant’s OCF-3 confirms the applicant continues to work but also indicates the applicant is substantially unable to perform the essential task of work. It also indicates the applicant is also able to return to work on modified duties.

10Moreover, the OCF-3 is not applicable to the period during which the applicant claims an NEB. The document is dated January 7, 2016 and estimates the applicant’s disability to last 5-8 weeks – well before May 19, 2016, the first day for which the applicant claims entitlement to NEBs.

11Lastly, there is no evidence the applicant’s social life or activities have been altered or in any way impacted by the accident during the period for which NEBs are claimed. The applicant has not provided any evidence to support the claim, and I see no records or statements of any kind to indicate such a change in the applicant’s life.

THE MINOR INJURY GUIDELINE

12There is a monetary limit available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3 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. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

13If the applicant’s injuries are deemed to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.

14The applicant claims to have been diagnosed with degenerative disc disease, carpal tunnel syndrome/arthritis, and vertigo and claims these are not injuries included within the MIG. In addition, the applicant claims to suffer from chronic pain and should be removed from the MIG as a result.

15I find the applicant has not met the requisite burden of proof to establish the injuries sustained as a result of the accident are nothing more than minor injuries as defined by the Schedule. The applicant is subject to the $3,500.00 funding cap as a result. My reasons are as follows.

Pre-existing Injuries

16The applicant does not have a pre-existing injury which would preclude recovery within the MIG. The applicant’s degenerative disc disease was considered mild when examined in March 2017, and the examination results did not prompt Dr. M. Yacowar, family physician, to make any treatment recommendations or any other corrective action. The applicant’s pre-existing carpal tunnel syndrome/arthritis does not appear to impact the applicant’s recovery. The applicant was only recommended to wear wrist splints at night and there is no recommendation or even a comment on whether the applicant should alter or could have difficulties with recovery on account of the carpal tunnel syndrome/arthritis.

17The applicant’s vertigo was not pre-existing and is not a result of the accident. The medical record shows the applicant first complained of vertigo symptoms in March 2017, almost a year and a half after the accident. Furthermore, I find the vertigo is not as a result of the accident but on account of wax impaction in the applicant’s ear. The applicant’s medical record shows the vertigo symptoms were resolved after the impacted ear was cleared with a syringe.

18The applicant has failed to consider how pre-existing medical conditions affect treatment within the MIG. Pre-existing medical conditions are relevant to the MIG when they affect the injured person’s recovery. The applicant does not address this. Instead, the applicant submits the pre-existing conditions cannot be treated within the funding limit of the MIG. This is irrelevant as the MIG is for treatment of injuries as a result of the accident – not treatment for pre-existing medical conditions.

Chronic Pain

19The applicant claims accident-related pain ongoing for more than two years after the accident is chronic pain and is not included in the MIG. I disagree.

20While the applicant has intermittent complaints of pain for more than two years following the accident, I find this pain is not a chronic pain condition as a result of the accident and does not remove the applicant from the MIG.

21The clinical notes and records of the applicant’s family physician, Dr. Yacowar, are not indicative of a chronic pain condition. Dr. Yacowar’s records connected the applicant’s pain to the subject accident on only three occasions. The first incident occurred immediately after the accident on November 20, 2015. The second time the applicant does not complain of pain but there is a recommendation made on July 8, 2016 to continue rehab. The most recent incident is March 27, 2017 when the applicant complains of bilateral shoulder pain and mentions the accident. Three visits attributed to accident-related pain over a period of three years is not indicative of a chronic pain condition. The remaining visits are primarily related to blood pressure and diabetes. As previously mentioned, even the applicant’s complaints of vertigo symptoms are attributed to an issue unrelated to the accident.

22Moreover, even if the pain were pain related to the accident, which I find it is not, I see no evidence that this pain impacts the applicant’s overall functionality. The applicant has returned to work on a full-time basis, is able to independently complete all aspects of personal care, continues to attend church, and uses public transit without assistance.

THE DISPUTED TREATMENT PLANS

23I have found the applicant’s injuries as a result of the accident are minor in nature and fall within the MIG. The applicant has consumed all of the $3,500.00 funding provided by the MIG. Considering this, an analysis on entitlement to the disputed treatment plan is unnecessary.

INTEREST

24The applicant is not entitled to NEBs and the disputed treatment plans are not payable because the applicant has reached the treatment funding limit provided by the MIG. No payments went overdue and no interest is owed as a result.

CONCLUSION

25I find the applicant is not entitled to NEBs because the applicant does not have a complete inability to carry on a normal life.

26I find that the applicant’s injuries as a result of the accident fall within the MIG and the applicant is subject to the funding limit prescribed in the MIG.

27The disputed treatment plans are not payable because the applicant has reached the funding limit provided by the MIG.

28No interest is owed.