Licence Appeal Tribunal
Tribunal File Number: 19-003051/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:
[L.R.]
Applicant
and
Wawanesa Insurance
Respondent
DECISION
PANEL:
Stephanie Kepman, Adjudicator
APPEARANCES:
For the Applicant:
Wojciech Wrobel, Paralegal
For the Respondent:
James A. Schmidt, Counsel
HEARD:
By way of written submissions
OVERVIEW
1[L.R.] (“the applicant”) was injured in an automobile accident (“the accident”) on November 4, 2017 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent.
2The respondent denied the applicant’s claims because it determined that all of her injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline2 (“the MIG”).
ISSUES
3The following are the issues to be decided:
(i) Did the applicant sustain predominately minor injuries as defined under the Schedule?
(ii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,749.60 for chiropractic treatment recommended by Mediwise Healthcare Clinic, in a treatment plan (OCF-18) submitted on November 27, 2017 and denied on December 6, 2017?
(iii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,920.53 for psychological treatment recommended by Mediwise Healthcare Clinic, in a treatment plan (OCF-18) submitted on January 16, 2018 and denied on January 29, 2018?
(iv) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,643.68 for chiropractic treatment recommended by Mediwise Healthcare Clinic, in a treatment plan (OCF-18) submitted on January 24, 2018 and denied on January 30, 2018?
(v) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $4,463.96 for psychological treatment recommended by Mediwise Healthcare Clinic, in a treatment plan (OCF-18) submitted on January 30, 2018 and denied on February 6, 2018?
(vi) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,921.42 for chiropractic treatment recommended by Mediwise Healthcare Clinic, in a treatment plan (OCF-18) submitted on April 19, 2018 and denied on April 25, 2018?
(vii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,225.80 for chiropractic treatment recommended by Mediwise Healthcare Clinic, in a treatment plan (OCF-18) submitted on September 5, 2018 and denied on September 17, 2018?
(viii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $4,015.12 for psychological treatment recommended by Mediwise Healthcare Clinic, in a treatment plan (OCF-18) submitted on September 20, 2018 and denied on October 3, 2018?
(ix) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant’s injuries do not fall outside the MIG and therefore, I do not need to consider if the treatment plans are reasonable and necessary. The applicant is not entitled to interest.
ANALYSIS
The Minor Injury Guideline
5Section 3(1) of the Schedule 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.” The MIG also defines in greater detail what these injuries mean.
6The onus is on the applicant to show that her injuries fall outside of the MIG.3 In this case, the applicant argues that her injuries are outside of the MIG due to the nature of her physical injuries, as well as based on her psychological injuries.
Did the applicant sustain predominantly minor physical injuries?
7I find that the evidence establishes that the applicant sustained physical injuries that are defined as a predominantly a minor injury for the following reasons:
a. The applicant has put forward arguments regarding her physical injuries, noting that she suffered from pain in her neck and back as a result of her accident. This is indicated in the clinical notes and records (“CNRs”) from Dr. Fahy Ghaly of Cawthra Medical, a walk-in clinic that the applicant visited after her accident. Dr. Ghaly’s CNRs do not indicate that the applicant has suffered anything beyond a strain or strain to her neck and back, both of which are MIG injuries.
b. When the applicant visited her Family Doctor, Dr. Rasha Wahba, on December 5, 2017, Dr. Wahba diagnosed her with neck whiplash and lumbar strain, and told her to continue her treatment of Nonsteroidal anti-inflammatory drugs (“NSAID”s), physiotherapy, massage therapy and neck stretching.
Nowhere in Dr. Washba’s notes does the doctor make a diagnosis or note regarding the applicant’s injuries related to her motor vehicle accident being beyond minor.
The next clinical note and record from Dr. Wahba is from April 10, 2018, detailing the applicant’s fall from a set of stairs at a friend’s house, where she hit her tailbone, approximately four months after the motor vehicle accident.
c. The applicant’s own submissions describe her injuries as: “pain in joint; myalgia; acute pain; muscle strain; tension-type headache, headache; other headache syndromes; injury of muscle and tension of head; injury of muscle and tendon at neck level; other and unspecified injury of muscle and tendon at neck level; unspecified injury of neck; pain in thoracic spine; sprain and strain of thoracic spine; injury of muscle and tendon at thorax level; radiculopathy; disorders of initiating and maintaining sleep [insomnia], sprain and strain of sacroiliac joint, sprain and strain of lumbar spine, low back pain, nervousness, malaise and fatigue, dizziness and giddiness, state of emotional shock and stress, unspecified; injury of muscle and tendon at lower leg level; and injury to multiple structures of knee.”
When looking at the physical injuries described, none of these injuries fall into the category of non-minor injury. Rather, they are encompassed within the definition of s. 3(1) of the Schedule.
d. The applicant presented herself for an Insurer’s Examination (“IE”) conducted by Dr. Patrick Tansey, Orthopaedic Surgeon, on February 23, 2018. Dr. Tansey found that the applicant’s physical injuries consisted of uncomplicated, soft tissue injuries as a result of her accident. He opined that the applicant’s injuries fell within the MIG and did not require any further physical treatment.
The applicant refutes this argument, stating that she has incurred approximately $7,718,98 for chiropractic and massage treatment at Mediwise. She also directs the Tribunal to the clinical notes and records from Mediwise Clinic, which indicated she was complaining on nearly every visit that she was experiencing neck and lower back pain.
When weighing this evidence, I do consider that the Mediwise Clinic clinical notes and records do indicate that the applicant was dealing with pain, but do not demonstrate that her physical injuries were outside of the MIG.
Does the applicant have a psychological impairment?
8The applicant also claims that she sustained a psychological injury as a result of the accident that place her claims outside of the MIG.
9Psychological injuries, if established, may fall outside the MIG because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.
10I find the applicant does not have a psychological injury, which would remove her from the MIG, for the following reasons:
a. The applicant presented evidence that she did complain of mental health issues. This was presented via the CNRs of her walk-in doctor, Dr. Ghaly, that she visited the doctor on December 2, 2017 with issues of depressed mood, loss of interest and feeling down. Dr. Ghaly referred the applicant for psychological treatment.
Dr. Ghaly does not diagnose the applicant with any specific psychological diagnosis but refers her to someone who can, specifically Dr. Ugwunze.
The applicant continued to report mood issues, this time to her treating family doctor, Dr. Wahba, on December 5, 2017. She reported that she was experiencing anxiety while driving, feeling “all over the place,” having a low mood, motivation and interests, having sleep difficulties and flashes of her accident.
Dr. Wahba and the applicant discussed her attending psychotherapy and counselling, encouraged her to participate in exercise and practice good sleep hygiene and discussed her trying mood medication. The applicant told her doctor she would like to try counselling before taking medication.
However, Dr. Wahba does not diagnose the applicant with any specific psychological diagnosis or impairment in 2017. The applicant continued to see Dr. Wahba throughout 2017 and 2018. During these visits, she did not mention any mental health issues impairing her. The applicant visited Dr. Wahba over 10 times during this period and has not mentioned further issues with her mental health. The respondent noted that during the applicant’s physical on September 7, 2018, Dr. Wahba noted “no depression, no anxiety, no memory concerns, [and] good sleep”.
b. I also considered the evidence of Dr. Nnamdi Ugwunze, Psychiatrist. Dr. Ugwunze saw the applicant on January 13, 2018. He notes that the applicant was “involved in a MVA November 2017 and was quite low”. However, he states that she feels better now, and goes so far as to write “with hindsight, she reckons the MVA was a blessing in disguise as she has made changes in her life”.
Dr. Ugwunze indicated that his impression was that the applicant had “depressive disorder – mild type.” I note the use of the word “mild”, as I do not interpret this to mean a psychological impairment, as Dr. Ugwunze discussed with the applicant that she did not meet the criteria for clinical depression at the time of their meeting. Dr. Ugwunzedid agree to refer the applicant to a psychotherapist for cognitive behavioral therapy (“CBT”) and review the applicant’s status in three months.”
These notes and records do prove that the applicant told her treating doctor that she was experiencing psychological complaints immediately after her accident. However, they do not show that the applicant was experiencing a psychological impairment that would remove her from the MIG.
c. The respondent argues that the above-mentioned complaints are not caused by the applicant’s motor vehicle accident but rather by pre-existing issues. These arguments would not remove the applicant from the MIG.
However, it also argues that the applicant’s pre-existing psychological issues have been resolved. It relies on its Insurer’s Examination (“IE”) conducted by Dr. Karen Spivak, Psychologist, on March 23, 2018. During this IE, the applicant told Dr. Spivak that as a result of the life changes she’d made, she is much happier than she’s been in a long time. She told Dr. Spivak that “I feel that I’m in a good place now”. She denied feeling depressed, anxious or experiencing adjustment issues as a result of the accident. She also reports no changes to her sleep and describes herself as a night person, going to bed around 1:00-2:00AM.
The applicant did report some anxiety related to driving, but that as a result of the accident, she was now driving more cautiously and vigilantly.
Based on the applicant’s self-reporting, the applicant’s clinical notes and records provided to Dr. Spivak and psychometric testing, Dr. Spivak found that the applicant did not meet the criteria of a psychological diagnosis.
d. The applicant put forward her own Psychological Assessment with Mr. Bruce Cook, psychologist, on January 25, 2018. Mr. Cook assessed the applicant using his clinical observations, an interview with the applicant, and various self-assessment tools such as the Personality Assessment Inventory (“PAI”).
Mr. Cook diagnosed the applicant with adjustment disorder mixed with anxiety and depressed mood which was caused by her accident.
However, I put less weight on Mr. Cook’s psychological assessment for the following reasons:
i. First, unlike Dr. Spivak, who received a multitude of clinical notes and records regarding the applicant, Mr. Cook only used the information he gathered from his interview with the applicant and his self-assessment tools. He did not consider the applicant’s CNRs from her family doctor, Dr. Wahba, nor the assessment from Dr. Ugwunze, which had been conducted in the same month.
ii. Secondly, there are issues of credibility in Mr. Cook’s assessment. Notably, the applicant was asked by Mr. Cook about her pre-accident health. She failed to disclose her high levels of alcohol intake. The applicant specifically denied issues with alcohol to Mr. Cook. However, the applicant’s high alcohol intake is referenced in both Dr. Wahba’s clinical notes and records and Dr. Ugwunze’s report.
Whether this is an intentional omission or not on the part of the applicant, this information was not provided to Mr. Cook and therefore, I put less weight on it.
11Because I have found the applicant’s injuries do not fall outside of the MIG, I do not need to determine whether the claimed treatment plans are reasonable and necessary nor if she is entitled to interest.
CONCLUSION
12For the reasons outlined above, I find that:
i. The applicant has not established that her psychological injuries have removed her from the MIG.
ii. The applicant is not entitled to the 4 requested chiropractic treatment plans.
iii. The applicant is not entitled to the 3 requested psychological treatment plans.
iv. The applicant is not entitled to interest.
Released: April 6, 2020
Stephanie Kepman
Adjudicator
Footnotes
- O. Reg. 34/10.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Scarlett v. Belair, 2015 ONSC 3635 para.24