B.Z.H. v. Wawanesa Mutual Insurance Company, 2019 CanLII 94135

Citation: B.Z.H. vs. Wawanesa Mutual Insurance Company, 2019 ONLAT 18-002633/AABS

Tribunal File Number: 18-002633/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:

[B. Z. H.]

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

PANEL:

Sandeep Johal, Adjudicator

APPEARANCES:

For the Applicant:

David Levy

For the Respondent:

Michael Unea

HEARD:

In Writing on: October 9, 2018

OVERVIEW

1The applicant was injured in an automobile accident on August 27 ,2013 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2As a result of the accident, the applicant experienced headache, right shoulder pain, low back pain as well as knee pain.

3The applicant applied for medical benefits that were denied by the respondent because she was placed into the Minor Injury Guideline (the “MIG”). The applicant’s claim for a non-earner benefit (“NEB”) was also denied. She disagreed with this decision and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES TO BE DECIDED

4The following are the issues to be decided:

i. Are the applicant’s injuries predominately minor as defined in s. 3 of the Schedule subject to treatment within the $3,500.00 limit in the Minor Injury Guideline (“the MIG”)?

ii. Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period of November 28, 2013 to date and ongoing?

iii. Is the applicant entitled to receive a medical benefit in the amount of $982.18 for chiropractic treatment, recommended by CRCC Brampton in a treatment plan submitted on, dated June 3, 2017 and denied on January 12, 2018 and;

iv. Is the applicant entitled to payments for the cost of examinations in the amount of $2,742.00 for a psychological assessment recommended by Rehabilitation Network Canada Inc. in a treatment plan dated February 6, 2018 and denied on February 16, 2018?

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

vi. Is the respondent liable to pay an award under Ontario Regulation 664 because it unreasonably withheld or delayed the payment of benefits to the applicant?

RESULT

5Based on the totality of the evidence before me, I find:

a. The applicant sustained predominately minor injuries as defined in the Schedule and she is subject to treatment with the MIG limits. As a result, it is therefore unnecessary to consider the reasonableness and necessity of the treatment plan and the cost of examination.

b. The applicant is not entitled to a NEB.

c. Accordingly, no interest or an award are payable.

ANALYSIS

Applicability of the Minor Injury Guideline

6The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 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.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.

7Section 18(2) of the Schedule makes provision for injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. 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, that will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.

8The applicant bears the onus to establish her entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.²

Does the applicant have chronic pain to be considered outside the MIG?

9It is my finding that the applicant has not satisfied me on a balance of probabilities that she has chronic pain or chronic pain syndrome that would take her out of the MIG for the following reasons.

10The applicant has been diagnosed with a strain and sprain to her cervical and lumbar regions and a blunt injury to her right upper extremity³ and which is similar to the diagnosis that Dr. Friedlander arrives at.⁴

11The applicant relies on the diagnosis of Dr. Friedlander who opines that the applicant has chronic pain syndrome as a result of the applicant’s need for medication, a psychological impairment, her dysfunction, and dependence on others. However, he also opines that the applicant has probably reached maximal medical recovery.⁵

12The respondent submits that Dr. Friedlander’s diagnosis of a psychological impairment is outside his scope of practice as a chronic pain specialist and furthermore, he in fact diagnosed the applicant with a lumbar and cervical spine strain which can be classified as predominately minor injuries that fall within the definition of the MIG.

13I agree with the respondent, that Dr. Friedlander’s opinion regarding the applicant’s psychological impairment is outside his scope of practice and expertise, and I place less weight on Dr. Friedlander’s report based on a balance of probabilities of the applicant’s injuries being chronic in nature for the following reasons. First, Dr. Friedlander only met with the applicant once and his findings are based on the applicant’s self reporting and a physical examination which found the applicant to have full range of motion in her neck and shoulders but limited range of motion of her lower back. However, he does not provide an explanation of how this would lead him to conclude that the applicant has chronic pain or chronic pain syndrome when the applicant reported to Dr. Friedlander that the clinical notes and records of her family doctor, Dr. Chan that stated she had pre-existing lower back pain and headache was incorrect. The applicant advised Dr. Friedlander that the clinical notes and records of back pain and headaches was in reference to her sister who has a similar name and also has Dr. Chan as her family doctor.⁶

14Second, Dr. Friedlander’s physical finding is similar to the physical findings of the respondent’s insurer examination (“IE”) assessor, Dr. Tauntas as discussed below.

15Third, I am not directed to evidence of any of the applicant’s treating medical practitioner’s noting the applicant to be complaining of pain that would be considered chronic in nature. The applicant has not pointed me to any clinical notes and records of her family doctor or other treating medical practitioner who the applicant has visited on a regular basis that has noted any complaints as to ongoing pain or the need for a referral to a chronic pain specialist. The applicant visited her family doctor on August 29, 2013 complaining of accident related injuries and then there are no clinical notes and records provided where she complained about the accident or accident related pain other than the Disability Certificates (OCF-3) from her chiropractor and family doctor several years later and no mention of pain that may be chronic.

16The applicant was referred to Dr. Tauntas for an IE. Dr. Tauntas is an orthopaedic surgeon and provided a report dated July 19, 2017 and an addendum report dated December 29, 2017. In her July 19, 2017 report, Dr. Tauntas opined that the applicant suffered a strain of her cervical and lumbar regions and that the applicant’s injuries appeared to be much more significant than the mechanism of the accident. Her conclusion was that the applicant should continue with self-directed home exercises and return to her normal life activities with the use of pacing and other strategies.⁷

17In the report dated December 29, 2017 Dr. Tauntas opines that the applicant has achieved maximum therapeutic benefit from facility based physical treatment. The basis of this opinion is a result of the physical findings from the examination that was conducted of the applicant. Dr. Tauntas notes the applicant was somewhat self-restricted during formal observation but during casual observation the mobility of her cervical spine was full and movements of all joints of the upper extremities were full and painless.⁸ Dr. Tauntas further concludes that the applicant’s injuries are within the definition of the MIG and she does not comment on whether the applicant’s injuries may be chronic in nature. Instead she opines that applicant presented with significant symptom magnification and her subjective complaints are not in accordance with the natural history of the uncomplicated soft tissue injuries sustained in the accident.

18As a result of the above, I find that the applicant has not satisfied me on a balance of probabilities that she has pain that is chronic in nature over a period of time to classify her injuries as outside of the MIG.

Does the applicant have a psychological impairment to consider her outside the MIG?

19The applicant relies upon the findings of Dr. Friedlander who diagnosed the applicant with a psychological impairment and psychologist Dr. Sedighdeilami in his report dated March 12, 2018.

20It is my finding that the applicant has not proved on a balance of probabilities that she suffers from a psychological impairment that would remove the applicant from the MIG for the following reasons.

21I place little weight on the report of Dr. Friedlander as he is a chronic pain specialist and a psychological diagnosis from him in my opinion would be outside his scope of practice and expertise. Also, because the applicant self reports that since the accident she does not suffer anxiety and depression.⁹

22The applicant also relies on Dr. Sedighdeilami who diagnosed the applicant as suffering from Major Depressive Disorder, Somatic Symptom Disorder (with predominant pain) and Specific Phobia (Vehicular Type) and recommends 12 Cognitive-Behavioural therapy (CBT) sessions.¹⁰

23The respondent relies on its psychological IE from Dr. Dumitrascu dated April 1, 2014 and who opines that the applicant does not suffer from a psychological impairment that would warrant any psychological treatment.¹¹

24Although the report from the respondent’s IE assessor was four years prior to Dr. Sedighdeilami’s psychological diagnosis and it is entirely possible that the applicant’s condition may have worsened during that time. However, the onus is on the applicant to prove and I am not provided or directed to any evidence of psychological symptoms the applicant may have been experiencing after the IE assessment in April 2014 where no psychological impairment was diagnosed to a Major Depressive Disorder in May 2018. There are no clinical notes and records from any treating practitioner including her family doctor about any complaints of a psychological nature that would warrant a referral to a psychologist.

25As a result of the above, I am not satisfied on a balance of probabilities that the applicant has psychological impairments that would take her out of the MIG.

Requirements to be removed from the MIG due to a pre-existing condition

26If the applicant’s injuries fall within the definition of the MIG, the applicant can still be considered to be out of the MIG in accordance with section 18(2) of the Schedule. In order to do so, the applicant must meet all three of the following requirements in order to escape the MIG under this section:

a) There was a pre-existing medical condition;

b) The pre-existing medical condition was documented by a health practitioner before the accident; and

c) The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.

27It is my finding that the applicant has not satisfied me on a balance of probabilities that she had a pre-existing injury that would remove her from the MIG for the following reasons.

28The applicant has not met all three of the criteria listed above in paragraph 25.

29The applicant’s family doctor noted the applicant to have had pre-existing back pain which was documented on November 8, 2010, January 10, 2012 and May 25, 2012. The applicant’s family doctor also noted that “Her present low back problem is all probability (sic) due to or aggravated (sic) by the said MVA (motor vehicle accident)”.¹²

30However, the applicant reported to Dr. Friedlander that the clinical notes and records of her family doctor, Dr. Chan that states that she had pre-existing lower back pain was incorrect and that it was in reference to her sister who has a similar name and also has Dr. Chan as her family doctor. The applicant reported to Dr. Friedlander that she contacted Dr. Chan about correcting the incorrect medical records but was told they could not be changed.¹³ As a result of this discrepancy in the evidence, I am not convinced on a balance of probabilities that the applicant had pre-existing back pain.

31It is therefore my finding that the applicant has not satisfied her onus to prove that she has injuries that are outside the definition of the MIG or any pre-existing injuries that may take her out of the MIG and therefore there is no need for me to consider the treatment plan in dispute or the cost of examination for a psychological assessment.

Does the applicant meet the requirements for a non-earner benefit?

32It is my finding that the applicant has not satisfied her onus to prove that she suffers from a complete inability to carry on a normal life for the following reasons.

33The test for entitlement for a NEB is for the applicant to show that she sustained an impairment as a result of the accident and that she suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident.¹⁴

34Both parties have cited the Heath¹⁵ case where the Ontario Court of Appeal has provided an analysis of the proper approach to interpret the test for NEB’s. The principles from Heath are as follows:

I. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident.

II. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident; the duration of which will depend on the facts of the case.

III. All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life.

IV. The applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.

V. “Engaging in” should be interpreted from a qualitative perspective. Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity.

VI. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can perform those activities.

35In order for me to assess the applicant’s claim for NEB’s she must show what her life was like before and after the accident.

36The applicant relies upon the following to show she has a complete inability to carry on a normal life.

i. Disability Certificate of Dr. Hylton, Chiropractor dated November 4, 2014 where Dr. Hylton check-marked “yes” to the question of whether the applicant suffers a complete inability to carry on a normal life.

ii. Dr. Chan’s handwritten note dated June 9, 2018 that the applicant visited him on three separate occasions for her lower back pain.

iii. Dr. Chan’s handwritten note dated August 27, 2018 that the applicant continues to suffer from a complete inability to carry on a normal life.

iv. Mr. Gupta’s occupational therapy reports dated May 14, 2018 and July 10, 2018 where Mr. Gupta states the applicant continues to suffer a complete inability to carry on a normal life as a result of the injuries sustained in the accident and;

v. Chronic pain specialist Dr. Friedlander’s reports dated May 15, 2018 and June 28, 2018 where he opines the applicant continues to suffer from a complete inability to carry on a normal life.

37The issue I have with the applicant’s evidence is that it does not provide me with a description in accordance with the Heath analysis. I am not provided with any evidence of the applicant’s activities and life circumstances before and after the accident.

38Mr. Gupta’s occupational therapy report states the applicant continues to suffer a complete inability to carry on a normal life as a result of accident related pain symptoms and resultant functional limitations which prevent her from participating in her pre-accident activities of daily living in the manner she used to participate in prior to the accident.¹⁶ However, the pre-accident activities discussed are with respect to her personal care, housekeeping and home maintenance for an attendant care benefit claim. There is no discussion of what activities were more important to the applicant that she is unable to participate in post-accident or whether her impairments actually prevent her from engaging in substantially all of her pre-accident activities in accordance with the guidelines from Heath.

39In the present case, the applicant has provided Disability Certificates (OCF-3’s) that check marked “yes” to the question of whether the applicant suffers a complete inability to carry on a normal life, however the OCF-3s do not address the components from the Heath test and they do not provide a comparison or a snap shot of the applicant’s pre and post accident activities.

40As a result of the above and on a balance of probabilities, I find that the applicant has not met the test to be entitled to a NEB.

Is the applicant entitled to interest and an award?

41As a result of my findings that the applicant’s injuries are within the MIG therefore she is entitled to the MIG’s $3,500 monetary limit and there is no need for an analysis on whether the treatment plan or the cost of examination is reasonable and necessary.

42I have further found that the applicant is not entitled to a NEB so there are no overdue payment of benefits and accordingly no interest is payable by the respondent.

43As there are no benefits that are owing to the applicant there is no basis for a finding that any benefit was unreasonably withheld or delayed and accordingly there is no award that is payable by the respondent.

CONCLUSION

44For the reasons outlined above, I find that:

a. The applicant sustained predominately minor injuries as defined in the Schedule she is entitled to the MIG’s $3,500 monetary limit and therefore there she is not entitled to payments for the treatment plan or the cost of examination in dispute; and

b. The applicant is not entitled to a NEB and accordingly no interest or an award are payable.

Released: August 13, 2019

___________________________

Sandeep Johal

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
3. 3Dr. Tauntas Report dated July 19, 2017 at page 5
4. 4Dr. Friedlander Report dated May 15, 2018 at page 14-15.
5. 5Ibid at page 19.
6. 6Ibid at page 8.
7. 7Dr. Tauntas Report dated July 19, 2017 at page 6.
8. 8Dr. Tauntas Report dated December 29, 2017 at page 5.
9. 9Supra Note 5 at page 9.
10. 10Dr. Sedighdeilami, Report dated March 12, 2018 at page 8.
11. 11Dr. Dumitrascu, Report dated April 1, 2014 at page 9.
12. 12Dr. Chan letter dated June 9, 2018.
13. 13Supra Note 5 at page 8.
14. 14Section 12(1) of the Schedule
15. 15Heath v Economical Mutual Insurance Company, 2009 ONCA 391. (Heath)
16. 16Mr. Gupta Report dated May 14, 2018 at page 52.