Released Date: 12/08/2020
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:
Bernadine Harriott
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Tania Lanteigne
For the Respondent:
Jonathan Heeney
HEARD:
Via written submissions
OVERVIEW
1The applicant was injured in an accident on August 1, 2017, and sought benefits from the respondent, Wawanesa, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). Wawanesa denied the benefits in dispute on the basis that the applicant’s accident-related impairments were predominantly minor injuries subject to the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?
b. Is the applicant entitled to a medical benefit in the amount of $3,288.36 for physical rehabilitation, stimulation, exercise, education, therapy recommended by Alexmuir Wellness Centre in a treatment plan (OCF-18) submitted on December 15, 2017?
c. Is the applicant entitled to $2,215.00 for a psychological assessment recommended by Alexmuir Wellness Centre in a treatment plan (OCF-18) submitted on January 1, 2019?
d. Is the applicant entitled to interest on any overdue payment of benefits?
result
3The applicant has not demonstrated that her accident-related impairments warrant treatment beyond the MIG. Accordingly, the benefits in dispute are not reasonable and necessary.
ANALYSIS
Applicability of the Minor Injury Guideline
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) defines a “minor injury” 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG.
5The applicant submits that her injuries are not minor and that her pre-existing conditions—notable for sprains and strains, hypertension and diabetes—justify removal from the MIG. Further, the applicant submits that she has chronic pain and that her recent diagnosis of Graves’ disease warrants treatment beyond the MIG. She relies on various clinical notes and records from her family physician, Dr. Kim, from Scarborough Hospital and her OHIP and prescription summaries.
6In response, Wawanesa submits that the objective medical evidence indicates that the applicant sustained soft-tissue injuries as a result of the 2017 accident. Further, it submits that the applicant has not demonstrated that her pre-existing conditions prevent maximal medical recovery under the MIG, that she sustained a psychological impairment as a result of the accident or that she has been diagnosed with chronic pain. Wawanesa also points to the applicant’s subsequent motor vehicle accident in February 2019 with a separate insurer, the fact that she has extended health-care coverage under Manulife and argues that the applicant has not demonstrated how her Graves’ disease is related to the accident. Wawanesa’s denials were based on s. 44 orthopaedic and psychological Insurer’s Examinations (“IEs”), both of which determined that the applicant sustained predominantly minor injuries as a result of the accident that are treatable within the MIG and that the treatment plans in dispute were not reasonable and necessary.
7I agree with Wawanesa. On the medical evidence, the applicant’s accident-related impairments fall squarely within the definition of minor injuries under the Schedule, as they are all listed as sprain and strain injuries in her OCF-3. I find limited medical evidence to support the applicant’s contention that her accident-related impairments are significant, as alleged. Further, while I am alive to the applicant’s claims regarding her pre-existing conditions, I agree that she has not provided a medical opinion or other medical evidence that states that she would be prevented from reaching maximal medical recovery within the MIG as result of these pre-existing impairments, as required by s. 18(2). There are no accident-related referrals or recommendations for treatment. In the absence of a medical opinion speaking to her inability to recover as a result of her hypertension or diabetes, I cannot find that she has satisfied her burden under s. 18(2).
8The applicant also alleges she has chronic pain that justifies removal from the MIG in order to curb her “long journey of intractable pain.” To this end, she cites clinical notes and records and her prescription summary as evidence. With respect, the medical evidence offered by the applicant to support her claim of chronic pain as a result of the accident is not compelling. I find no actual diagnosis of chronic pain or chronic pain syndrome in the clinical notes. The applicant has not demonstrated that any back or neck pain she does have is definitively traced to this accident dispute, as I find the notes that do mention pain are sporadic and are not contemporaneous with the 2017 accident. Indeed, while the applicant may have pain, I do not find that her pain causes the type of functional impairment that would warrant removal from the MIG, as her prescription history is not particularly complex, she has not been referred for a pain program, identifies no functional issues with her daily activities and has worked full-time at her job since the accident.
9For completion, while her submissions to do not specifically address it, the applicant also seeks a psychological assessment. However, the Tribunal was not directed to a diagnosis of an accident-related psychological impairment or emotional symptoms reported to a medical professional that would warrant removal from the MIG or contribute to a chronic pain diagnosis. In a similar vein, while the Tribunal is alive to the applicant’s diagnosis of Graves’ disease and the symptoms that may accompany that autoimmune disorder, the applicant has not demonstrated that her Graves’ disease, diagnosed one year after the accident, was caused or exacerbated by the accident or that it will prevent her recovery from same. Further, I agree with Wawanesa that she has not provided authority to demonstrate that Graves’ disease justifies removal from the MIG.
10For these reasons, I find that the applicant has fallen well short of meeting her burden to prove that her accident-related impairments warrant treatment beyond the MIG. Accordingly, I see no reason to depart from the opinions of Wawanesa’s s. 44 assessors and find that the applicant’s accident-related impairments are properly within the MIG.
Are the treatment and assessment plans reasonable and necessary?
11Having determined that the applicant has not met her burden to prove that her impairments warrant treatment beyond the MIG, it is my understanding the MIG limits for treatment have been exhausted. Accordingly, an analysis of whether the treatment plans in dispute are reasonable and necessary under s. 15 is not required.
12In any event, for completion, the applicant did not provide specific submissions to explain why the two treatment plans she seeks are reasonable and necessary or how they would address her accident-related impairments, as it is her burden to do. As she is properly within the MIG and has not demonstrated why the treatment plans are needed, the Tribunal cannot find them payable. As no benefits are overdue, it follows that no interest is payable under s. 51.
CONCLUSION
13The applicant has not demonstrated that her accident-related impairments warrant treatment beyond the MIG. As the MIG limits have been exhausted, the applicant is not entitled to payment for the treatment and assessment plans in dispute, as they are not reasonable and necessary.
Released: December 8, 2020
Jesse A. Boyce
Vice Chair
Footnotes
- O. Reg. 34/10, as amended.