Citation: MJ vs. Wawanesa Mutual Insurance Company, 2020 ONLAT 18-008501/AABS

Released Date: 02/14/2020 File Number: 18-008501/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

M.J.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

Derek Grant

For the Applicant:

Claire Mazerolle, Counsel

For the Respondent:

Anju Sharma, Counsel

HEARD: In Writing

August 12, 2019

1The applicant (“M.J.”) was involved in an automobile accident on May 19, 2017 (“the accident”) and sought medical benefits from the respondent (“Wawanesa”).

2Wawanesa denied M.J.’s claims because it took the position that his injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fell within the Minor Injury Guideline¹ (“the MIG”). M.J. disagrees.

3The MIG sets a monetary limit of $3,500.00 on medical and rehabilitation benefits for predominantly minor injuries. M.J. argues that his injuries take him out of the limits set out by the MIG. Based on treatment that M.J. has received to date, the MIG limit has been exhausted.

ISSUES

4The issues in dispute were identified and agreed to as follows:

i. Did M.J. sustain predominantly minor injuries as defined under the Schedule?

ii. Is the medical benefit in the amount of $2,099.98 for physiotherapy treatment recommended by Alexmuir Wellness in a treatment plan submitted on July 11, 2018, and denied on July 24, 2018, reasonable and necessary?

iii. Is the medical benefit in the amount of $3,338.40 for physiotherapy treatment recommended by Alexmuir Wellness in a treatment plan submitted on March 21, 2018, and denied on April 3, 2018, reasonable and necessary?

iv. Is the medical benefit in the amount of $3,097.68 for other goods and services of a medical nature recommended by Alexmuir Wellness in a treatment plan submitted on July 21, 2017, and denied on August 1, 2017, reasonable and necessary?

v. Is the medical benefit in the amount of $2,125.00 for other psychological services recommended by Alexmuir Wellness in a treatment plan submitted on July 21, 2017, and denied on July 30, 2017, reasonable and necessary?

vi. Is the medical benefit in the amount of $4,783.30 for physiotherapy treatment recommended by Alexmuir Wellness in a treatment plan submitted on August 22, 2017, and denied on August 31, 2017, reasonable and necessary?

vii. Is the medical benefit in the amount of $3,505.76 for physiotherapy treatment recommended by Alexmuir Wellness in a treatment plan submitted on September 25, 2017, and denied on October 6, 2017, reasonable and necessary?

viii. Is M.J. entitled to interest on any overdue payment of benefits?

RESULT

5Based on a review of all the evidence put before me, I find that M.J.’s physical and psychological injuries meet the definition of ‘minor’ under the Schedule. He is therefore subject to treatment within the MIG limit which has already been exhausted. It is therefore unnecessary for me to consider whether the treatment plans are reasonable and necessary or determine whether interest is payable.

SCHOLARLY ARTICLES

6Wawanesa submits the evidence at Tabs 6², 7³, 8⁴ and 9⁵ and related submissions should be struck from M.J.'s submissions on the grounds of procedural fairness. The evidence was not provided to Wawanesa by the production deadline of April 5, 2019 nor at any time prior to the written submissions of M.J. being served.

7Wawanesa contends it will be prejudiced should the evidence be permitted as it was unable to obtain comment and/or rebuttal from its medical experts and was unable to question the authors of the articles. Further, there is little information provided regarding the authors of the articles and the source of the information. There is no evidence regarding the expertise of the authors and whether the opinions are still maintained by the authors. Accordingly, Wawanesa submits, it is unable to fairly defend or refute the opinions contained therein and is prejudiced.

8M.J. takes the position that Tabs 6, 7, 8, 9 are scholarly articles and need to be weighed as case law more than primary evidence. Wawanesa had the opportunity to review the articles and case law submitted to form its own arguments.

9M.J. submits Wawanesa is in no way prejudiced. None of these scholarly articles can be used for the basis of a new report or new diagnosis for M.J. They were simply used to support current and existing diagnoses. According to M.J., these scholarly articles help the Tribunal by putting his primary evidence into context.

10M.J. takes the position that Wawanesa failed to follow the proper procedure regarding the consideration of M.J.'s submissions. M.J. contends that the way Wawanesa handled this issue is contrary to the concept of procedural fairness.

11I do not find the articles to be helpful in making a determination in this matter. They are not regarded as the accepted medical or objective standard in determining the extent of M.J.’s accident-related injuries. Further, the authors and their articles, are not considered to be experts or expert reports for the purposes of this proceeding.

12For the reasons above, I place little weight on the articles, and do not find them persuasive in reaching my decision regarding M.J.’s injuries or his entitlement to the issues in dispute.

LAW

Minor Injury Guideline

13The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in subsection 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 “sprain”, “strain”, “subluxation”, and “whiplash associated disorder” are also defined in subsection 3(1).

14The onus is on the applicant to show that his injuries fall outside of the MIG.⁶

15M.J. argues that his injuries go beyond the definition of “minor” because he has sustained physical and psychological impairments which remove him from the MIG.

Did M.J. sustain physical injuries that remove him from the MIG?

16Although M.J. has provided medical evidence which confirms he sustained accident-related injuries, none of the evidence shows that his injuries fall outside the MIG. In addition, the evidence submitted by Wawanesa confirms that M.J.’s physical injuries fall within the MIG.

17My finding that M.J.’s physical injuries fall within the MIG is supported by the following evidence:

(i) The disability certificate (“OCF-3”) completed by Nina Bajaj, a physiotherapist, dated May 19, 2017, confirms M.J. has soft tissue injuries.⁷ The issues listed on the OCF-3 would be considered predominantly “minor”;

(ii) Although M.J. reports to Dr. Yufe that he visits Dr. Wu monthly⁸, the clinical notes and records indicate infrequent post-accident visits. Specifically, the clinical notes and records of Dr. Wu confirm visits on May 19, 2017 and June 11, 2017.⁹

(iii) M.J. asserts he has ongoing left shoulder pain as a result of the accident. However, there is no report of left shoulder pain to Dr. Tansey¹⁰, Dr. Dumitrascu¹¹ or Dr. Yufe¹² during the insurer examinations (“IEs”) conducted in November and December of 2017. Similarly, he did not report any left shoulder injury to Dr. Steiner in August of 2017.¹³;

(iv) An MRI of the thoracic spine was conducted on June 26, 2018. It revealed mild degenerative changes. There was no significant disc bulge, canal stenosis, neuronal foraminal stenosis or nerve root impingement.¹⁴; and

(v) M.J.'s pre-accident employment as an accounts clerk was classified as sedentary employment. Based on the Functional Capacity Evaluation, it was found that M.J. had the physical capability of performing work that required "medium" strength demands - thereby exceeding the physical requirements of his pre-accident employment.¹⁵ In his submissions, M.J. suggests the report was commenting that he was only able to perform his job at a medium level.

18I find that the medical evidence submitted by M.J. confirms that his physical injuries are predominantly minor. M.J. has therefore failed to persuade me that the physical injuries he sustained in the accident require treatment beyond that provided for in the MIG.

Did M.J. sustain psychological injuries that remove him from the MIG?

19For the reasons that follow, I find that M.J.’s own evidence does not support the conclusion that his psychological impairments would remove him from the MIG.

Cultural influence and psychological impairments

20M.J.’s counsel contends that culture plays a significant role in the diagnoses of his accident-related psychological impairments. M.J. submits that he only met Dr. Dumitrascu once and he has been seeing his family doctor for many years. M.J. implies that due to his Guyanese heritage and culture, this has influenced his self-reporting to the IE assessors, and potentially influenced the resulting psychological diagnoses.

21Ms. Mazerolle opines that M.J.,

“likely has a certain comfort about opening up about psychological issues to Dr. Wu. Dr. Steiner met M.J. in a place where he goes multiple times a week, and he feels comfortable. It is sensible to believe that he is likely to be more open in a comfortable setting than a onetime assessment. It is clear that the Applicant struggled with opening up to Dr. Dumitrascu due to lack of trust, discomfort, and cultural stigma that goes along with mental health in the Guyanese culture”.

22I find that there is no objective or medical evidence that establishes any connection between M.J.’s cultural background and the findings of either Dr. Steiner or Dr. Dumitrascu. I agree with Wawanesa that Ms. Mazerolle made unproven statements that are without merit in the subject proceeding.

Dr. Steiner and Dr. Dumitrascu Psychological Reports

23M.J. relied on a psychological report¹⁶ to establish that he suffered accident-related psychological impairments. In terms of psychological impact, M.J. disclosed that the physical and emotional consequences of the accident interfered with his daily functioning and routine.

24Dr. Steiner diagnosed M.J. with Post-traumatic Stress Disorder, Major Depressive Disorder and Specific Phobia, Situational. As a result, Dr. Steiner recommended 16 counselling sessions over a period of 3-4 months, as well as a Driver Re-integration program.

25M.J. was assessed by Psychologist Dr. Dumitrascu on November 16, 2017. As with Dr. Steiner, M.J. reported to Dr. Dumitrascu that he was having sleep difficulties. In addition, when Dr. Dumitrascu administered the Beck Depression Inventory test, M.J. scored similarly to the findings of Dr. Steiner. Despite the findings of lack of interest in sexual activity and other social interactions, I am not persuaded by this evidence that M.J.’s psychological impairments are anything but sequelae of his predominantly minor accident-related injuries.

27There has been no psychological treatment post-accident. M.J. asserts Dr. Wu provided a referral for psychological treatment. There is no reference in Dr. Wu's clinical notes and records regarding psychological complaints or referrals. It should also be noted that M.J. visited a Dr. Bacher on May 10, 2018 and reported no psychological issues.¹⁷

28Although M.J. alleges that he sustained a psychological impairment as a result of the accident, he has not provided persuasive medical evidence to demonstrate that he is unable to recover under the MIG as a result of any accident-related psychological symptoms.

29Without the presence of an objective medical opinion providing a thorough analysis to indicate the existence of a psychological impairment that is not sequelae of minor injuries, I am unable to conclude that M.J. suffers from a psychological impairment that warrants removing him from the application of the MIG.

CONCLUSION

30M.J. has not met the onus on him to prove his injuries are not predominantly minor. As such, M.J. is not entitled to the treatment plans in dispute as the $3,500 MIG limit has already been exhausted. No interest is owing as there is no payment of benefits overdue. M.J.’s claim is dismissed.

Released: February 14, 2020

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