Citation: GV vs. Wawanesa Insurance Company, 2020 ONLAT 18-012561/AABS

Released Date: 04/28/2020

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:

G. V.

Applicant

and

Wawanesa Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Jennifer Carter, Counsel

For the Respondent:

Karin Breininger, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant, G.V. was involved in an automobile accident on May 29, 2017 (“the accident”) and sought medical benefits from the respondent (“Wawanesa”).

2Wawanesa denied G.V.’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”). G.V. disagrees.

3If Wawanesa is correct, G.V. is then subject to the $3,500.00 limit on benefits prescribed by s. 18(1) of the Schedule and, in turn, a determination of whether the claimed benefits are reasonable and necessary will not be needed as G.V. has exhausted the $3,500.00 maximum benefit for minor injuries.

4I must, therefore, decide whether G.V.’s injuries are predominantly minor as defined by the Schedule. If they are not, I must then determine whether the disputed medical benefits, as well as the associated fees and expenses, are reasonable and necessary.

ISSUES

5The issues I must determine are as follows:

a. Are G.V.’s injuries predominantly minor injuries as defined in the Schedule and subject to treatment within the Minor Injury Guideline (the “MIG”)?

6If G.V.’s injuries are not subject to the MIG limits, then I must determine the issues as follows:

a. Is the medical benefit in the amount of $3,485.00 for chiropractic services recommended by Scott Family Chiropractic submitted on June 27, 2018 and denied on October 3, 2018, reasonable and necessary?

b. Is the medical benefit in the amount of $1,145.01 for chiropractic services submitted on September 21, 2018, and denied on October 3, 2018, reasonable and necessary?

c. Is the medical benefit in the amount of $311.67 for chiropractic treatment submitted on November 13, 2018, and denied on November 20, 2018, reasonable and necessary?

d. Is the medical benefit in the amount of $623.34(OFC-6) submitted on December 21, 2018, and denied on January 11, 2019, reasonable and necessary?

e. Is G.V. entitled to interest on any overdue payment of benefits?

RESULT

7Based on a review of the evidence, I find that G.V.’s injuries are predominantly minor. G.V. is therefore not entitled to the treatment plans or the expense claim, therefore no interest is payable.

8As a result of my finding that G.V.’s injuries are predominantly minor, it is unnecessary for me to make a determination as to whether the disputed treatment plans are reasonable and necessary.

LAW

Minor Injury Guideline

9The 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).

10The onus is on the applicant to show that his injuries fall outside of the MIG.²

11G.V. submits that his injuries go beyond the definition of “minor” because he has sustained physical injuries which remove him from the MIG.

ANALYSIS

Are G.V.’s injuries predominantly ‘minor’?

12The day after the accident, G.V. saw his Family Physician, Dr. Gideon. G.V. was diagnosed with the following: headaches, neck pain, mid-low back pain, pain in left hip, pain in right shin, numbness in right thigh, left trapezii muscle spasms, left paralumbar, right parascapular and right paracervical muscle spasms with tenderness and left paralumbar, right parascapular and right paracervical muscle spasms with tenderness.³

13G.V. relied on several clinical notes and records (“CNRs”) of Family Physician, Dr. Gideon. I find the pain complaints made to Dr. Gideon also support that G.V.’s injuries are predominantly ‘minor’. My finding is based on the following:

a) July 26, 2017, G.V. saw Dr. Gideon and reported that his headaches had significantly improved, and he had been essentially free of them even though he had been back at work for three weeks;

b) G.V. saw Dr. Gideon only once in 2018, on July 26, 2018. G.V. reported numbness in his right thigh anteriorly. He was diagnosed with meralgia parasthetica which is a neurological condition that causes numbness and tingling in the outer thigh and has no apparent relation to the accident. G.V. did not present with any accident-related pains;

c) His next visit to Dr Gideon was on February 19, 2019, at which time there was no mention of neck or back pain or any other accident-related pain complaints; and

d) His next visit was on May 30, 2019. G.V. reported that he went to help a friend at his old job for two days but found it difficult. On examination he had right paralumbar muscle spasms which are apparently related to his thoracic spine tilt and degenerative changes.

14On behalf of Wawanesa, Dr. Eric Silver, a physician, assessed G.V. on October 16, 2018. Dr. Silver opined that “from a musculoskeletal perspective and based on the currently available information it is my opinion that the Applicant sustained uncomplicated soft tissue injuries to his neck and back as a result of the subject accident. it is my opinion that the Applicant’s injuries fall within the auspices of the Minor Injury Guideline”.⁴ Dr. Silver concluded that G.V.'s injuries were minor in nature. I agree.

Does G.V. suffer from a chronic pain condition that would remove him from the MIG?

15I find that G.V. does not have a chronic pain condition arising from the accident that places him outside of the MIG. Chronic pain, if established, removes a claimant from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.

16G.V. submits that due to his ongoing pain complaints, it has resulted in “chronic pain”. G.V. contends he has not reached his pre-accident state, he still has functional impairments and has not recovered in the usual time with these types of injuries. Despite this, G.V. has not provided me with any medical opinion that supports a chronic pain diagnosis.

17None of Dr. Gideon’s CNRs or correspondence make any mention of chronic pain or chronic pain syndrome. Further, G.V.’s treating chiropractors are not qualified to diagnose chronic pain.

18I find that G.V.’s symptoms do not meet the criteria for chronic pain because:

(i) I find for chronic pain to take someone out of the MIG, there must be an affect on their functionality. A treating physician’s mention of a chronic pain condition be it ‘syndrome’ or specific use of the term ‘chronic pain’ is not enough in establishing the impact on functionality. This opinion must be supported by medical evidence that establishes an insured’s functionality is impaired and that the chronic pain is the cause of the disability.

(ii) G.V. has no medical evidence that supports a chronic pain syndrome diagnosis.

19I find that the G.V.’s functionality is inconsistent with chronic pain based on the following:

(i) G.V. has taken no medication for any accident-related pain complaints and is currently not receiving treatment having last seen his family physician in 2017 with respect to his accident-related complaints;

(ii) G.V.'s pain does not result in functional impairments as he continues to work as Package Handler at UPS, he has resumed his activities of daily living, he is capable of engaging in housekeeping tasks, he is independent with respect to his personal care tasks and he continues to drive⁵;

(iii) G.V. returned to his UPS position part-time and gradually increased to full time, and has repeatedly asked for and received increase hours; and

(iv) Even though G.V. has stopped working at his pre-accident full-time job, the reason was due to the company closing and there was no job for him when he was ready to return to work⁶, and not because of any accident-related impairments.

20Based on the evidence before me, I am unable to find, on a balance of probabilities, that G.V. should be removed from the MIG because he has chronic pain, or that he suffers from chronic pain as a result of the accident.

21The medical evidence submitted by G.V. and Wawanesa confirm that G.V.’s physical injuries are consistent with those that would be defined as ‘minor’. The evidence supports and I find that G.V. suffered soft tissue injuries as a result of the accident. G.V. has therefore failed to persuade me that the physical injuries he sustained in the accident require treatment beyond that provided in the MIG.

CONCLUSION

22G.V. sustained predominantly minor injuries that fall within the MIG. Accordingly, G.V. is not entitled to payment for the treatment plans claimed in this application. His application is dismissed.

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Scarlett v. Belair, 2015 ONSC 3635 para. 24.
3. 3Clinical Notes and Records of Dr. Gideon, Attached at Tab 2 – Applicant’s Submissions
4. 4General Physician’s Report, Attached at Tab 12, pg. 8 – Respondent’s Submissions
5. 5Dr. Gideon’s CNRs – Attached at Tab 2 and Tab 3 – Respondent’s Submissions
6. 6Ibid – Tab 2