Citation: [M.C.] v. Wawanesa Mutual Insurance Company, 2019 ONLAT 18-010423/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.C.]

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Marisa Victor

APPEARANCES:

For the Applicant:

Kateryna Vlada, Paralegal

For the Respondent:

Nicholas M. Wine, Counsel

HEARD: In Writing

July 8, 2019

REASONS FOR DECISION

OVERVIEW

1The applicant was involved in an automobile accident on October 23, 2014 and sought accident benefits from the respondent (“Wawanesa”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2Wawanesa denied that applicant’s claims because it determined that her injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore fall within the Minor Injury Guideline (the “MIG”).

3The applicant then submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) to appeal the denial.

4The applicant’s position is that her injuries, including psychological injuries and chronic pain, do not fall within the definition of minor injuries and are therefore outside the MIG. If the applicant’s position is correct, then I must address whether the medical benefits in dispute are reasonable and necessary for the treatment of her injuries.

5If Wawanesa is correct, then the applicant is subject to a $3,500 limit on medical and rehabilitation benefits prescribed by s. 18(1) of the Schedule. As the applicant has already exhausted those benefits, no further benefits would be payable.

ISSUES

6The following are the issues in dispute:

i. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule?

ii. Is the applicant entitled to payment in the amount of $3,627.40 for chiropractic services?

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

RESULT

7The applicant sustained predominantly minor injuries and is subject to the MIG. No further benefits are payable. The applicant is not entitled to interest as there are no overdue benefits.

THE MIG

8The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 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.” Subsection 18(1) of the Schedule provides for a cap of $3,500 for minor injury medical and rehabilitation benefits.

9However, s. 18(2) of the Schedule states that if an applicant has a pre-existing injury, documented by a health practitioner before the accident, that will prevent the applicant from achieving maximal recovery under the limit under the MIG, then the applicant is removed from the MIG.

10The onus is on the applicant to prove on a balance of probabilities that her entitlement to medical benefits is not subject to the MIG.

ISSUE I: ARE THE APPLICANT’S INJURIES PREDOMINANTLY MINOR INJURIES AS DEFINED IN THE SCHEDULE?

11I find that the applicant has failed to establish that her injuries fall outside the definition of minor injuries. Her benefits are therefore subject to the MIG.

Applicant’s Evidence

12The applicant claims that she suffered a head, shoulder and knee injury as a result of the accident. She states that she has developed a severe concussion, chronic pain, and psychological symptoms.

Drop Attacks

13The applicant submits that she suffers from neurological injuries due to the accident. She also relies on her chiropractor who notes that she suffered from a concussion in his OCF-3. The applicant states that although she has a pre-existing history of migraines, she is now suffering from severe headaches resulting in drop attacks (sudden loss of balance and falling over). Her migraines have also worsened. As a result she can no longer carry on a normal life and is prevented from babysitting her grandchildren and maintaining employment. The applicant also states that she developed severe anxiety as a result of the drop attacks. The stress related to the drop attacks led her to take a leave of absence resulting in a salary reduction. She is also not able to return to pre-accident activities.

Right Shoulder

14With regard to her right shoulder, the applicant states that an ultra-sound was conducted, and she was diagnosed with inflammation of the tendon sheath and tendon together with fluid. She reports significant pain that disrupts her sleep and causes her emotional distress.

Knee Injury

15The applicant reports that an ultrasound of her knee showed excess fluid around the knee joint, partial tear of the ligament and a possible meniscus tear. A further MRI showed a very small Baker’s cyst and deterioration of the cartilage of the knee. She visited her family doctor on October 18, 2016 and pursuant to his instructions, she now wears a knee brace. She states that her housekeeping abilities were severely affected.

Chronic Pain

16The applicant states that her lower back pain and knee injuries have resulted in chronic pain. The applicant relies on her decoded OHIP summary and her family doctor’s records who notes on several occasions that the applicant has “chronic pain”.

Psychological Injuries

17The applicant states that she has a pre-existing history of anxiety and depression as evidenced by her decoded OHIP report. As a result of the accident, she states these conditions have been aggravated by the accident. She states that she treats these conditions with natural remedies including attending counselling, stress workshops and following recommendations from medical professionals.

18The applicant rejects the findings of the respondent’s IE’s on the basis that they ignored medical evidence from her doctor and the changes in her life since the accident. She also states that some of these IEs are now out of date.

Causation

19In her reply, the applicant states that the drop attacks can be traced to the accident. The applicant states that the family doctor’s notation “no recent falls but issues since MVA 3 years ago” shows that the falls are related to the accident.

20The applicant replies on 17-006422 v. Guarantee Company of North American¹ for the proposition that if the accident was a contributing factor to the complaints then the “but for” test is met. The applicant also relies on 18-000655 v. Echelon General Insurance Company² to support her position that self-reported evidence can satisfy causation and entitlement to medical benefits.

Respondent’s Evidence

21The respondent rejects the applicant’s arguments and states that her injuries fall within the MIG. The respondent raises the causation of the applicant’s complaints as an issue.

Drop Attacks

22In relation to the applicant’s falls, the respondent agrees that much of the family doctor’s notes relate to this concern. However, the respondent states that the condition is unrelated to the accident.

23The respondent notes that the neurological reports by the applicant’s neurologist, Dr. Morgenthau, were normal until November 26, 2018. However, there was nothing to support that the reflex changes noted were a result of the accident. He also reported that the applicant stated she had stopped work but that it was not related to the medical issues.

Right Shoulder and Knee Injury

24In regard to physical pain, the respondent states that Dr. Frydrych’s notes, the applicant’s family doctor, state on October 31, 2014 that the applicant was involved in a car accident but suffered no injuries. The next entry, in December 2014, only notes thumb pain unrelated to the accident.

25The respondent rejects the applicant’s reliance on ultra-sound and MRI findings, arguing that they show nothing more than soft-tissue injuries or findings with no apparent symptoms (for example, the January 12, 2018 MRI showing moderate cerebral atrophy.)

26The respondent states that the only notation of a concussion comes from the chiropractor who, it states, is not qualified to diagnose a concussion. The respondent states that the other documents do not support an accident related concussion.

27The respondent relies on the Insurer’s Exam (“IE”) conducted by Dr. Mascarenhas, General Practitioner, on September 15, 2015. He found that the applicant had suffered a cervical strain, whiplash associated disorder I-II, lumbar strain, shoulder and knee strain. He found she had uncomplicated and minor soft tissue related injuries which had already healed.

28In October 2015, Dr. Frydrych notes that the applicant complained of knee pain but that it was not due to the motor vehicle accident. The applicant stated that her knee was fine but then she stood up and heard a crack and then had knee difficulties. This was one-year post accident. The respondent states that the knee injury is in fact due to mild degenerative changes.

Chronic Pain

29As a result of an IE orthopaedic assessment conducted on October 28, 2016, Dr. Marchie, orthopaedic surgeon, reported that the applicant’s back and knee pain were treated with Advil and had improved. The applicant reported a return to pre-accident housekeeping tasks and denied restrictions to her self-care. Dr. Marchie found her injuries to be minor and that there was no compelling evidence of pre-existing impairment that would prevent maximum recovery under the MIG. In his supplementary report of December 4, 2017, he stated she did no show signs of chronic pain.

30With regard to chronic pain, a further IE with Dr. Devlin, physiatrist, was conducted in April 2019. During the IE, the applicant advised that her drop attacks began around Christmas 2016, more than two years post-accident. Dr. Devlin reported that there is no evidence that these attacks are related to the accident. Dr. Devlin further found that her accident related injuries fell within the MIG.

31In regard to loss of employment, the respondent states that the applicant worked as a dental hygienist for 3.5 years after the accident and then left due to occupational stress related to her relationship with her employer and not due to the accident.

Psychological Injuries

32The respondent also relies on the IE conducted by Dr. Spivak, clinical psychologist, on October 2, 2015. During that evaluation, the applicant denied feeling anxious or depressed. Dr. Spivak found that the applicant did not present symptoms of mood, anxiety, adjustment or somatic disorder. The applicant reported only intermittent back and knee pain and significant improvement since the accident.

Causation

33Finally, the respondent asserts that the applicant has not offered an explanation as to how her existing complaints are related to the accident using the “but for” test. The respondent relies on 16-004312 v. Aviva Insurance Canada³ for that test. The respondent states that the applicant’s knee pain began one-year post accident. Her falls began two years post-accident. Her right shoulder injury appears to be as a result of the drop attack falls. Her neurologist has not tied her complaints to the accident.

Analysis

Drop Attack, Shoulder injury, Anxiety, Job Loss

34I find that the applicant’s drop attacks are not connected to her accident. I accept that the causation test before this Tribunal is the “but for” test.

35In her submissions, neither the applicant nor her medical evidence addresses the significant time that elapsed after the accident prior to the first drop attack (two years) which led to her shoulder pain, anxiety and job loss. The applicant has not provided medical opinion that the complaints are connected to the accident. She relies on her own self-reporting to satisfy the “but for” test.

36I find that on a balance of probabilities, the applicant has not shown that the drop attacks are related to the accident. The applicant’s medical records do not tie the drop attacks to the accident. Her family doctor’s records note that the applicant is concerned doctors do not know the cause of the drop attacks. She stated to her doctor that she believed it was related to an ear problem. The report of Dr. Morgenthau, the neurologist she was referred to by her family doctor, does not tie the drop attacks to the accident. Furthermore, he states that with physiotherapy the issue has resolved, and no more treatment is necessary. In light of the medical documents, I place little weight on the applicant’s self-reporting that the drop attacks are caused by the accident.

37As a result, I find that the drop attacks are not related to the accident. As such, the issues caused by the drop attack, namely, shoulder pain, anxiety, psychological issues related to the drop attack, job loss, and effect on daily living are not related to the accident. These injuries therefore cannot take her out of the MIG.

Knee Injury

38I find on a balance of probabilities that the applicant has not shown that her knee pain is as a result of the accident given her self-reporting of feeling a pop one year post-accident. The MRI does not provide evidence that assists the applicant, showing instead mild degenerative changes. Further, there is no medical opinion tying the injury to the accident. The applicant was treated with a knee brace and physiotherapy. Finally, even if the injury was caused by the accident, the applicant has failed to show that the injury itself is not a minor injury.

Chronic Pain

39The applicant states that she suffers from chronic pain. I have found that the knee injury is not caused by the accident and therefore any chronic pain as a result cannot take the applicant out of the MIG. The family doctor’s note indicates a chronic pain of the lower back however that is only in one notation in all the family doctor’s records. The evidence fails to support that the lower back pain is caused by the accident, has progressed to such a level that it is chronic, and that the chronic lower back pain has affected the applicant’s quality of life. As such I cannot find that the applicant has chronic pain caused by the accident.

Psychological Injuries

40The applicant states she has a pre-existing history of anxiety and depression as evidenced by her decoded OHIP report. Section 18(2) of the Schedule states that if an applicant has a pre-existing injury that prevents the individual from a full recovery then they are removed from the MIG. However, the applicant is required to show compelling evidence provided by a health practitioner before the accident that the injury exists. The applicant relied on the decoded OHIP to show this compelling evidence. I find the decoded OHIP records, essentially billing records, do not rise to the level of compelling evidence from a health practitioner prior to the accident. Further, the second part of s. 38(3)(c)(i)(B) of the Schedule requires the applicant to provide evidence from a health practitioner that the pre-existing injuries will prevent the insured from achieving maximal recovery. The applicant’s evidence does not support this, especially given my findings above regarding causation of the drop attacks. As a result the applicant’s psychological injuries do not remove the applicant from the MIG.

ISSUES II AND III: CHIROPRACTIC TREATMENT AND INTEREST

41As the applicant is subject to the limits of the MIG and has already exhausted her medical and rehabilitation benefits, no further benefits would be payable. The applicant is not entitled to further chiropractic treatment.

42As there are no overdue payment of benefits, there is no interest due.

ORDER

43The applicant’s injuries are predominantly minor injuries as defined in the Schedule. No further benefits are payable. The applicant is not entitled to interest as there are no overdue benefits.

Footnotes

1. 12018 CanLII 95556 (ON LAT)
2. 2218 CanLII 132557 (ON LAT)
3. 32018 CanLII 39463 (ON LAT)