L.B. v. Wawanesa Mutual Insurance Company, 2019 CanLII 94020

Citation: L.B. v. Wawanesa Mutual Insurance Company, 2019 ONLAT 18-008180/AABS

Tribunal File Number: 18-008180/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:

L. B. Appellant(s)

and

Wawanesa Mutual Insurance Company Respondent

DECISION

PANEL: Thérèse Reilly, Adjudicator

APPEARANCES: For the Appellant: Victoria Gorbenko, Paralegal For the Respondent: Nicole A. Dowling, Counsel

HEARD: In Writing on: April 29, 2019

OVERVIEW

1The applicant was involved in an automobile accident on January 9, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant applied for medical benefits for chiropractic and psychological services and the cost of a psychological assessment, all of which were denied by the respondent on the basis that the applicant has not proven she has any pre-existing injuries that would impede maximal recovery and her injuries fall within the Minor Injury Guideline. The respondent also maintains the treatment plans in dispute are not reasonable and necessary.

2The applicant maintains her injuries are not within the Minor Injury Guideline. She maintains further that she is entitled to the benefits in dispute as they are reasonable and necessary and deemed incurred.

ISSUES

3The issues are as follows:

a. Did the applicant sustain a predominantly minor injury as defined under the Minor Injury Guideline and, thus, is she limited to a $3,500 limit on treatment?

b. Is the applicant entitled to the disputed medical benefits because they are reasonable and necessary: i. Is the applicant entitled to receive a medical benefit for $1,236.35 (less $1,100.00 approved) for chiropractic services recommended by Alexander Yu in a treatment plan submitted on August 23, 2017 and denied by the respondent on September 1, 2017? ii. Is the applicant entitled to receive a medical benefit for $3090.09 for chiropractic services recommended by Alexander Yu in a treatment plan submitted on October 4, 2017, denied by the respondent on October 12, 2017? iii. Is the applicant entitled to a medical benefit for $4,266.47 for psychological services recommended by Svetlana Gabidulina in a treatment plan submitted on November 8, 2017 and denied by the respondent on November 15, 2017? iv. Is the applicant entitled to $1845.72 for the cost of a psychological assessment recommended by Svetlana Gabidulina in a treatment plan submitted on April 9, 2017 and denied by the respondent on April 21, 2017?

c. Is the applicant entitled to an award under section 10 of Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?

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

RESULT

4For the reasons set out below, I find that the applicant’s impairment falls within the Minor Injury Guideline. I find the medical benefits and the assessment are not reasonable and necessary. The claim for an award is dismissed. Interest is not payable as there is no overdue payment of benefits.

THE LAW - THE MINOR INJURY GUIDELINE

5The main consideration in this appeal is whether the applicant’s injuries fall within the Minor Injury Guideline.

6The Minor Injury Guideline (“MIG”) establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3.

7Section 18(1) limits recovery when the MIG applies to $3500. Section 18(2) of the Schedule makes a provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the amount in MIG.

8The applicant submits that her injuries are not minor, since, as a result of the accident, she suffered a psychological impairment and has been diagnosed with chronic pain syndrome, carpal tunnel syndrome and a severe bilateral neural foraminal stenosis in the C5-6 of the spine, all of which take her out of the MIG.

9Based on the totality of the evidence before me, and for the reasons that follow, I find the applicant has not proven on a balance of probabilities that she sustained injuries that are other than predominantly minor injuries, as defined under the Schedule.

Did the applicant sustain a psychological impairment to remove her from MIG?

10To support her claim that she suffered a psychological impairment as a result of the accident, the applicant refers to the medical evidence from her family doctor and visits on January to April 2017, March, June and October 2018, and January 24, 2019, when the family doctor noted the applicant’s difficulty with managing pain, and the impact that this is having on her activities of daily living. She also relies on the opinion from her treating psychologist, Dr. Gabidulina.

11I find the family doctor records do not reflect psychological symptoms to support an impairment. She reported to her doctor feelings of irritability and anger. The doctor noted in June 2018 that the applicant was more frustrated and has less patience as a result of the accident. I find that this reference is not sufficient to show a psychological impairment. Although a diagnosis is not required, I find there is no diagnosis of any psychological impairment by the family doctor. No referral was made by the family doctor to treat the psychological impairment and no medication was prescribed by the doctor to treat any psychological symptoms.

12The applicant in May 2017 reported to Dr. Gabidulina that she has pain when she stands for long periods of time, when bending, lifting or sitting. She now cannot help her husband with the landscaping business as she used to. She cannot take care of her kids as before the accident. She also has difficulty sleeping and wakes up constantly. She has also returned to driving and prefers this rather than being a passenger. She reported being more angry, impatient and irratible. She reported having flashbacks of the accident. Dr. Gabidulina concluded she had severe emotional distress and recommended psychological treatment based on her conclusions.

13The applicant submitted the opinion of Dr. Gabidulina,¹ psychologist, to support her position that she sustained a psychological impairment Dr. Gabidulina examined the applicant in May 2017 and, in her report, outlines the results of the Beck Depression Inventory testing and the Beck Anxiety Inventory in which she found the applicant had mild depression but no significant level of general anxiety. Her report concludes that the applicant had a DSM-5 diagnosis with the symptoms of a depressive episode (moderate), situational (isolated) phobia, and moderate automobile anxiety.

14The applicant was sent for an assessment by the respondent and was assessed by Dr. Wolf, psychiatrist on May 12, 2017.² Dr. Wolf examined the applicant and completed a review of a number of medical documents, including the psychological assessment report and screening report by Dr. Gabidulina, as well as the treatment plans for chiropractic treatment by Dr. Yu. He also completed a number of tests. He reviewed the conclusions reached by Dr. Gabidulina. Based on the review, tests completed and examination of the applicant, he did not find the applicant sustained a psychiatric impairment as a result of the accident. He disagreed with the DSM-5 diagnosis of Dr. Gabidulina.

15The applicant reported to Dr. Wolf that she had returned to driving and was helping her husband with the landscaping business, although less than before. She had no medical issues prior to the accident and was taking Advil regularly for pain. She indicated to Dr. Wolf that she had pain and trouble lifting objects. She was able to do some gardening and could do laundry and cook but with help from others. She reported being more frustrated. She denied feeling depressed and was more tense and irritable although she had this before the accident. She reported trouble sleeping, which she believed was due to snoring and pain, and acknowledged this was a problem before the accident as she had intended on having this evaluated prior to the accident. Dr. Wolf noted in his report that the applicant did not display any pain. She denied flashbacks and nightmares of the accident. He noted that she did not demonstrate any emotional or psychological distress. Her mood was described as good. Dr. Wolf concluded in his section 44 IE report that her condition did not warrant any psychiatric diagnosis or treatment. He found no DSM5 diagnosis. The respondent advised the applicant that, based on his report, the applicant did not sustain a psychological impairment.

16I find the applicant was not consistent with the reports of symptoms to Dr. Wolf and Dr. Gabidulina. Dr. Gabidulina’s opinion is based on symptoms not reported to Dr. Wolf. For example, the applicant refers to flashbacks of the accident and headaches. She denied flashbacks or nightmares of the accident to Dr. Wolf. She denied having any depression to Dr. Wolf. I also find Dr. Gabidulina’s conclusions are not supported by her own test results from the Beck Depression and Beck Inventory testing, which showed only mild depression and no level of general anxiety. Based on the doctors stated definition of anxiety, this would include driver anxiety.

17Lastly, the applicant’s sleep issues were noted by both doctors. A sleep study was requested by the family doctor in February 2017 and the report in October 2017 revealed snoring as an issue, which the applicant acknowledged was an issue prior to the accident. The sleep study identified no sleep disorders connected to the accident.

CHRONIC PAIN AND OTHER PHYSICAL PAIN COMPLAINTS

18The applicant’s physical pain complaints after the accident include neck pain, low back pain, right shoulder and right arm pain. Diagnostic imaging taken after the accident, including the X-ray taken of the cervical spine, did not reveal any fractures.

19The family doctor noted in her clinical notes, and her treating chiropractors reported initially in the OCF-3, that the applicant suffered soft tissue injuries as a result of the accident. The family doctor notes in January, February and June 16, 2017 refer to the applicant having sustained soft tissue injuries described as a chest wall and abdominal strain. Physiotherapy was recommended by the family doctor. The family doctor’s notes from March 7, 2018 refer to the applicant’s neck and arm pain being likely due to muscle strain from the accident. The doctor noted the applicant had a normal range of motion in the shoulder, elbow and wrist. She noted mild pain from movement in the shoulder and neck. She suggested physiotherapy and that the applicant apply heat to the affected areas. On June 11, 2018, the family doctor noted shoulder pain and suggested physiotherapy treatment. No mention was made that the applicant obtain a chronic pain assessment.

20The Disability Certificate (OCF-3) completed by the treating chiropractor, dated March 8, 2017, states that the applicant sustained soft tissue injuries. It is not until the November 8, 2017 OCF-3 that Dr. Pham adds chronic pain to the list of injuries. The OCF-24 (Minor Injury Discharge Report) stated no additional treatment was required beyond MIG.

21The applicant in her submissions refers to evidence which she maintains is evidence of a chronic pain diagnosis. A diagnosis of chronic pain is not required to establish that an applicant is suffering from chronic pain which takes her out of the MIG. The same applies to the issue of a psychological impairment.³

22Although a diagnosis of chronic pain is not required, there must be compelling evidence of symptoms that are continuous, and of a severity that they cause suffering and distress accompanied by functional impairment or disability.

23I do not agree with the submissions of the applicant that she was diagnosed with chronic pain syndrome. The applicant referred to comments made by Dr. Basile and Dr. Jha, who, in their reports,⁴ mentioned that a referral for a pain management clinic may help the applicant. Dr. Jha in his report stated the applicant should consult with a chronic pain clinic. The applicant saw Dr. Basile, neurologist, in April 2017 and May 2018 and Dr. Jha, neurosurgeon in September 2018. The applicant claims both Dr. Basile and Dr. Jha diagnosed the applicant with chronic pain. I disagree. These were not a diagnosis and only a suggestion she attend a chronic pain clinic. The family doctor subsequently contacted the applicant about scheduling a referral for the chronic pain clinic, but the applicant did not proceed with the referral.

24The applicant relies on the family doctor notes of June 11, 2018, which state that the applicant had difficulty with managing pain and noted the applicant has less patience and that she gets frustrated more easily since she has chronic pain. She also refers to the notes of January 24, 2019, in which the family doctor wrote that the applicant has "A-chronic neck and thoracic area muscle strain and 2 possible abdo hernias-chronic pain syndrome since MVA in January 2017.”⁵ I agree the notes of June 11, 2018 and January 24, 2019 make reference to ongoing pain complaints by the applicant. However, the notes of the family doctor have to be reconciled with the video surveillance evidence and evidence of the IE assessor, Dr. Halman, which I find does not demonstrate functional impairment or disability.

25The applicant was sent to a section 44 IE assessment regarding the issue of MIG and assessed by Dr. Halman, orthopaedic surgeon on May 2, 2017. She complained of left abdominal wall pain that was improving and some right shoulder pain. Dr. Halman reported her right arm weakness was resolving. He found her examination was objectively normal and no orthopaedic impairments were noted by Dr. Halman, who concluded the applicant suffered a cervical sprain.⁶

26Following receipt of the clinical notes of the family doctor and the report and MRI results described below, the respondent requested an updated report from Dr. Halman. The paper review was completed on February 27, 2019. Dr. Halman after a review of the clinical notes of the family doctor, those from Dr. Basile and MRI results, concluded his opinion remained unchanged. The applicant had suffered a cervical strain as a result of the accident.

27The applicant seeks to discount the video surveillance evidence on the basis that it is taken over one day only and, as such, is not meaningful. That timeframe is not correct as the investigative reports show video footage was taken over three days on June 10, 20 and 24, 2017,⁷ and a second series of surveillance was completed on November 6, 7, 8, and 9 and 14, 2018.⁸ The investigative reports describe the applicant engaging in a number of activities, including getting in and out of a truck unassisted with no difficulty, walking, bending over, reaching, gardening, and lifting bags of soil. No difficulty with movement is demonstrated. The video surveillance reports describe the applicant performing ordinary activities such as driving, taking her children to school, running errands, and engaging in lawn maintenance tasks. In the November 2018 video footage, the applicant is using her right arm to carry boxes with no sign of impingement. As to driver anxiety, the video surveillance does not demonstrate driver anxiety. The video shows the applicant regularly driving a vehicle, running errands, and driving her kids to and from school. I find these activities do not support the applicant to be suffering from chronic pain that is continuous, and of a severity that it causes suffering and distress accompanied by functional impairment or disability.

28Based on the totality of the evidence before me, I do not find the applicant suffers from chronic pain syndrome.

Has the applicant developed carpel tunnel as a result of the accident?

29In March 2017, the applicant went to the emergency department at a local hospital, complaining of right neck and arm pain and tingling and numbness in her right arm. She was referred by the emergency department to Dr. Basile, who examined the applicant on April 4, 2017. Dr. Basile in his initial report outlined the nerve conduction and EMG tests that he completed, and initially found the applicant had mild carpal tunnel syndrome on the right side. He ordered an MRI, which was completed on March 2, 2018. In his follow up examination on May 2, 2018, he repeated the same nerve conduction tests but did not find any evidence of carpal tunnel syndrome.⁹

30The applicant argues that she was diagnosed with carpal tunnel syndrome.¹⁰ Based on Dr. Basile’s second series of tests, which did not reveal any carpal tunnel syndrome, I find the applicant did not sustain carpal tunnel.

Severe Bilateral Neural Foraminal Stenosis

31The MRI of March 2, 2018 showed degenerative changes at C5-C6, including loss of disc signal and severe bilateral neural foraminal stenosis, which, by definition, the applicant states is not a MIG injury as it is neurological sign of impairment. Dr. Basile reviewed the findings of the March 2, 2018 MRI of the cervical spine and, in his consultation note of May 2018, suggested that the applicant 1) be referred to Dr. Jha, neurosurgeon, to see if she is a potential candidate for surgery; 2) be referred to a pain management clinic which may be of benefit to her; and 3) have conservative treatment such as physiotherapy, massage and aqua therapy.

32The applicant maintains the degenerative condition identified in the March 2, 2018 MRI is accident-related and she relies on comments made by Dr. Basile which she claims provides a correlation between the MRI findings and the January 9, 2017 accident. The applicant refers to a comment made by Dr. Basile that the applicant continues to have neck pain and right arm pain as well as radiating pain in the right shoulder and shoulder blade. “She does have transient arm weakness and numbness. Her symptoms started immediately after she was involved in a car accident on January 9, 2017."

33The applicant relies on the decision of AW v Co-Operators,¹¹ in which the adjudicator stated MRI findings of mild to moderate spinal stenosis and mild to moderate bilateral foraminal narrowing, when supported by medical evidence of a causal link to the motor vehicle accident, may indicate injuries that are outside of the MIG. She claims the diagnosis of severe bilateral neural foraminal stenosis with loss of disc signal clearly goes beyond "cervical strain" and should not be treated within the MIG. The applicant claims she has experienced symptoms of right arm weakness and numbness, as well as dropping objects with her right hand. In her view, this condition correlates to symptoms of paralysis.

34The respondent outlines that, to be successful, the applicant has to prove a causal link between the accident and the degenerative condition.¹² Dr. Jha examined the applicant’s complaint of pain in right shoulder, hand and the MRI results. He was asked to comment on the degenerative condition. In his report, he made no comment to link the condition to the accident. When the applicant saw Dr. Halman in May 2017, her right arm weakness was stated to be resolving. No medical explanation is submitted by the applicant about the nature of the condition and its association to the accident. The statement made by Dr. Basile is not a medical explanation that the bilateral foraminal narrowing is linked to the accident. Dr. Halman also reviewed the results of the MRI and the position that the applicant sustained only minor injuries was unchanged.

PRE-EXISTING INJURY

35The applicant agreed that, prior to the January 9, 2017 motor vehicle accident, she was not suffering from any significant pre-existing condition.¹³ A review of the applicant’s report by her treating chiropractor, Dr. Yu, ¹⁴ reveals that prior to the accident, she suffered from a right hand fracture, sciatica and possible hernia which was under investigation. Dr. Yu opined that the hernia and sciatica are barriers to recovery. The applicant acknowledged having sleep issues prior to the accident. The applicant did not present any compelling medical evidence as required under section 18(2) that show these pre-existing conditions prevent her from recovering under the MIG. I also note Dr. Halman opined that any pre-existing degenerative changes in the cervical spine would not impede maximum medical recovery.¹⁵ Based on the limited evidence and the admission made by the applicant, I find that the applicant does not suffer from any pre-existing conditions, which prevents her from achieving maximal recovery under the MIG.

36Lastly, the applicant in her submissions with respect to the claim for a medical benefit for $1,236.35 (less $1,100.00 approved) for chiropractic services maintains that under section 38 (11) the respondent cannot raise the issue of MIG as the respondent failed to deny the treatment plan within the 10 day timeline set out in section 38 (8). The respondent outlined that its records indicates the treatment plan was not submitted until August 23, 2017 and thus the plan was properly denied on September 1, 2017. I agree and find section 38 (11) is not applicable.

37I find the applicant sustained predominately minor injuries. Any benefits would be limited to a maximum of $3,500 for medical and rehabilitation benefits. No evidence was led indicating whether the MIG limits have been exhausted.

Medical Benefits and Cost of Assessment – Are they reasonable and necessary?

38The applicant argued that the medical benefits in dispute are reasonable and necessary and to be deemed incurred. She refers to the evidence of her family doctor, Dr. Basile, Dr. Jha, Dr. Gabidulina and Dr. Yu, to support her position.¹⁶ The applicant provided no specific analysis of why each treatment plan in dispute is reasonable and necessary.

Are the treatment plans for chiropractic services reasonable and necessary?

39The applicant submitted two treatment plans for chiropractic services recommended by Alexander Yu. The first plan is for $136.35 and was submitted August 23, 2017. The second is for $3090.09 and was submitted on October 4, 2017. Both list similar injuries ranging from 18 to 24 injuries which includes injuries such as abdominal pain, abdominal rigidity, dizziness, nervousness, emotional shock and stress and muscle strains and sprains. The listing of goods and services to be provided however only includes treatment for the back, neck and head. As to the injuries listed many of which are psychological in nature, I note these are outside of the expertise of the chiropractor.

40The treatment plans do not refer to any required treatment for carpel tunnel or any bilateral neural foraminal stenosis condition. The medical evidence establishes the applicant does not have carpel tunnel. There is also no evidence to establish a link between bilateral neural foraminal stenosis condition and the accident. Dr. Halman, also found that by May 2017 the applicant’s claim of right arm weakness was resolving. As such the treatment plans to treat these two conditions is not reasonable and necessary.

41The applicant maintains the chiropractic treatment is reasonable and necessary to treat chronic pain. As outlined above, the first treatment plan referred only to minor injuries. It is not until the second treatment plan is submitted that it includes a reference to chronic pain. I find the medical evidence does not establish the applicant suffers from chronic pain syndrome. Furthermore, the surveillance evidence provides in my view evidence the applicant’s complaints of chronic pain are not affecting her activities of daily living such as getting in and out of a truck unassisted with no difficulty, walking, bending over, reaching, gardening, and lifting bags of soil and requiring chiropractic treatment. No difficulty with movement is demonstrated. Based on the totality of the medical evidence the chiropractic treatment plan to address chronic pain is not reasonable and necessary.

Are the treatment plans for psychological services and an assessment reasonable and necessary?

42The applicant submitted a treatment plan for $4,266.47 for psychological services submitted on November 8, 2017 and a treatment plan for $1845.72 for the cost of a psychological assessment submitted April 9, 2017 both recommended by Dr. Gabidulina.

43I agree with the position of the respondent and find based on the totality of the evidence before me and my findings set out above, that the two treatment plans for psychological services and a psychological assessment are not reasonable and necessary. The treatment plans referred to the Dr. Gabidulina finding that the applicant had a DSM-5 diagnosis with the symptoms of a depressive episode (moderate) and situational (isolated) phobia. Dr. Wolf did not agree with the DSM-5 diagnosis.

44Although a diagnosis is not required, there is no diagnosis of any psychological impairment by the family doctor. No referral was made by the family doctor to treat the psychological impairment and no medication was prescribed by the family doctor to treat any psychological symptoms. I also prefer the evidence of Dr. Wolf for the reasons outlined above over the report from Dr. Gabidulina. The evidence from Dr. Wolf does not support any further claim for treatment for psychological services or the assessment. I find the treatment plans are not reasonable and necessary.

Interest

45Since I did not find any benefit to be payable, no interest is applicable. Therefore, the applicant is not entitled to any interest.

An Award under Ontario Regulation 664 (O/Reg 664)

46Section 10 of Ontario Regulation 664 states that an amount of up to 50 per cent with interest on all amounts owing may be awarded if an insurer has unreasonably withheld or delayed payments. As I have found nothing payable, the respondent cannot have unreasonably withheld or delayed payments. The award is not granted.

CONCLUSION

47For the reasons outlined, I find that the applicant’s injuries are predominately minor injuries. The applicant is not entitled to the treatment plans and cost of the assessment as they are not reasonable and necessary. The applicant is not entitled to interest, or an award pursuant to Section 10, Ontario Regulation 664.

Released: July 17, 2019

Thérèse Reilly Adjudicator

Footnotes

1. 1Psychological Rehabilitation Screening Report, March 31, 2017, tab 16, written submissions of the applicant and the Psychological Assessment Report, assessment completed May 2017, report dated June 5, 2017, at tab 17, page 13.
2. 2Psychiatric Assessment Report, Dr. Wolf, May 29, 2017, tab 19, written submissions of the applicant.
3. 3Neither party referred me to the Supreme Court of Canada decision in Saadati v Moorhead, 2017 SCC 28, [2017] 1 SCR 543, in which it was held an actual diagnosis is not required.
4. 4Report of Dr. Jha, written submissions of the respondent, tab 6, reports of Dr. Basile, April 4, 2017, tab 5 and follow up May 2, 2018 tab 6, written submissions of respondent.
5. 5Clinical Notes and records of the family doctor, tab 12h of the written submission of the applicant.
6. 6Report of Dr. Halman, dated May 17, 2017, tab 8, written submissions of the respondent.
7. 7Cobra Investigation Agency in June 2017, written submissions of the respondent tab 13.
8. 8Centura Investigation Agency report, November 2018, written submissions of the respondent, tab 14.
9. 9Reports of Dr. Basile, April 4, 2017, tab 5 and follow up May 2, 2018 tab 6, written submissions of respondent.
10. 10Written submissions of the applicant, paragraph 21.
11. 11A.W. v Co-operators 16-000283 2017 Canlii 9815, reply submissions of the applicant, paragraph 5.
12. 12LAT decision 16-000045, written submissions of the respondent.
13. 13Written reply submissions of the applicant, paragraph 2.
14. 14Examination reports and follow up reports by Dr. A. Yu, chiropractor, dated February 17, and July 28, 2017, and report of Dr. Pham, chiropractor dated October 2017, written submissions of the applicant, tab 7a, page 473.
15. 15Written submissions of the respondent, paragraph 18.
16. 16Written submissions of the applicant, paragraph 22.