P.S. v. Wawanesa Mutual Insurance Company, 2020 CanLII 87934

P.S. v. Wawanesa Mutual Insurance Company, 2020 CanLII 87934

Citation: P.S. v. Wawanesa Mutual Insurance Company, 2020 ONLAT 19-006582/AABS

Released Date: 10/07/2020

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:

P.S.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Counsel for the Applicant: Lisa Bishop

Counsel for the Respondent: Ryland MacDonald

Heard: By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on February 10, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was a front seat passenger in a vehicle that was stopped at a red traffic light when the vehicle was struck from behind by another vehicle. As a result of the impact, the applicant sustained injuries to her shoulder and suffered from painful arcs.

3The applicant applied for medical benefits that were denied by the respondent as it determined that her injuries were subject to the Minor Injury Guideline (the “MIG”). The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

ISSUES TO BE DECIDED

4The following are the issues to be decided:

(i) Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?

(ii) Is the applicant entitled to attendant care benefits in the amount of $417.98 per month for the period February 10, 2018 to date and ongoing, denied by the respondent on April 25, 2018?

(iii) Is the applicant entitled to receive a medical benefit in the amount of $260.80 ($1,560.80 less $1,300.00 approved by the respondent) for physiotherapy treatment, recommended by Health-Pro Wellness in a treatment plan dated July 20, 2018, and denied by the respondent on July 26, 2018?

(iv) Is the applicant entitled to receive a medical benefit in the amount of $2,747.00 for physiotherapy treatment, recommended by Health-Pro Wellness in a treatment plan dated September 17, 2018, and denied by the respondent on October 1, 2018?

(v) Is the applicant entitled to receive a medical benefit in the amount of $2,456.00 for physiotherapy treatment, recommended by Health-Pro Wellness in a treatment plan dated April 10, 2019, and denied by the respondent on April 24, 2019?

(vi) Is the applicant entitled to payments for the cost of examinations in the amount of $2,155.13 for a psychological assessment, recommended by Health-Pro Wellness in a treatment plan dated November 12, 2018, and denied by the respondent on November 23, 2018?

(vii) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

(viii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5Based on the totality of the evidence before me, I find:

(i) The applicant sustained predominately minor injuries as defined in the Schedule and, thus, she is subject to treatment within the monetary limits of the MIG;

(ii) The treatment plans and the cost examination are not reasonable and necessary;

(iii) The applicant is not entitled to an attendant care benefit; and

(iv) As there are no outstanding benefits, the applicant is not entitled to interest or an award.

ANALYSIS

Applicability of the Minor Injury Guideline

6The 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.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.

7The applicant bears the onus of establishing, on a balance of probabilities, her entitlement to coverage beyond the $3,500 cap for minor injuries.²

8The applicant submits a “minor injury” is one which would be effectively or reasonably treated in a manner that would bring the applicant back to his or her pre-accident functioning, following a timeline that will not typically exceed twelve weeks in duration. If a medical professional is of the opinion that the injuries or impairments sustained by the applicant within or at the end of the twelve weeks submits a treatment plan beyond the twelve-week period, the injury can reasonably be considered to be outside the scope of the MIG.

9I would not agree with the applicant’s submission. I have not been directed to any evidence in support of this position. In my view, the MIG is defined by the type of injuries and if the applicant suffers from an injury or impairment that is not within the definition, then she is considered to be outside of the MIG and entitled to the higher tier of medical and rehabilitation benefits.³

10In the present case the applicant submits she suffers from psychological issues, a pre-existing shoulder injury and from chronic pain.

11I will first discuss whether the applicant has a psychological impairment or chronic pain sufficient enough to remove her from the MIG. Then I will discuss whether she has a pre-existing injury which may remove her from the MIG.

Does the applicant have a psychological impairment to remove her from the MIG?

12For the following reasons, I find that the applicant does not have a psychological impairment to be taken out of the MIG.

13The applicant relies upon a psychological pre-screen interview where a provisional diagnosis of adjustment disorder with mixed anxiety and depressed mood disorder and specific phobia (driving and travelling as a passenger) was rendered.⁴

14The respondent takes the position that solely relying on a pre-screening interview for a “provisional” diagnosis is not sufficient evidence for removing an applicant from the MIG. The respondent relies upon the Financial Services Commission of Ontario (“FSCO”) case of Ahmed and Unifund,⁵ where the Arbitrator in that case held that a psychological pre-screening report did not provide a sufficient evidentiary basis for removing the applicant from the MIG. In that case the Arbitrator held that a pre-screen report was not a full psychological assessment as the information in the report relied solely on the applicant’s self-reporting and there was no diagnostic testing or diagnosis yielded.

15Furthermore, the respondent relies upon the Tribunal case of MFX and Certas,⁶ in support of its position that the submission of a treatment plan requesting psychological treatment is not sufficient evidence to prove that the applicant suffers from a psychological impairment that falls outside the MIG if there is no corroborating medical evidence.⁷

16I agree with the respondent and the case law the respondent relies upon in support. Although I am not bound by FSCO case law I find the Ahmed and Unifund case to be persuasive. A psychological pre-screen interview on its own is not sufficient evidence in support of a psychological impairment as it is entirely based on the applicant’s self-reports and no diagnostic testing to confirm the results. Although an applicant’s self-reporting is not meant to be diminished, however the evidentiary burden to prove an impairment must be on a balance of probabilities with compelling evidence. In my view, a pre-screen interview based on self-reporting answers is not compelling evidence on its own. There must be corroborating evidence and I note there are no psychological issues raised by the applicant during any of the visits to her family doctor, and the OCF-3s,⁸ noting psychological issues were made by a chiropractor and I find that it is beyond the scope of a chiropractor to opine on psychological impairments.

17As a result of the above, I find that the applicant has not persuaded me on a balance of probabilities that she suffers from psychological impairments to be removed from the MIG.

Does the applicant have a chronic pain condition?

18I find that the applicant has not persuaded me on a balance of probabilities that she suffers from chronic pain in order to be removed from the MIG for the following reasons.

19The applicant submits she suffers from chronic pain because of the clinical notes and records combined with the treatment plans indicate that the applicant’s injuries have persisted for approximately 14 months since the accident and as a result, her injuries can no longer be considered “minor” injuries.

20I would not agree with the applicant’s submission. There must be evidence from a medical practitioner that the applicant’s pain has become chronic in some way. Chronic pain cannot be inferred based solely on the length of time that has elapsed since the date of the accident or based on the length of time the applicant has attended for treatment.

21The applicant further relies upon the FSCO case of Arruda and Western Assurance Company,⁹ in support of her position that chronic pain is a basis for removing a person from the MIG. I agree with that proposition, however I find that the facts in the present case are distinguishable from Arruda. In Arruda, the applicant was diagnosed with chronic pain syndrome and it was held that the applicant in that case had her life changed dramatically as a result of her chronic pain diagnosis. In the present case, I am not presented with any evidence from a medical practitioner that the applicant has chronic pain syndrome or even chronic pain.

22As a result of the above, I find that the applicant has not persuaded me that she suffers from chronic pain that would be sufficient to remove her from the MIG.

23I will now turn to discuss whether the applicant has a pre-existing injury in accordance with the Schedule and whether that is sufficient to remove her from the MIG.

Requirements to be removed from the MIG

24Even if the applicant’s injuries fall within the definition of minor injury, she can still be taken out of the MIG in accordance with s. 18(2) of the Schedule. She must meet all three of the following requirements in order to be removed from the MIG under this section:

(i) have a pre-existing medical condition;

(ii) the pre-existing medical condition was documented by a health practitioner before the accident; and

(iii) the person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.

25For the following reasons, I find that the applicant has not satisfied her onus and has not provided any submissions or evidence of a pre-existing condition that satisfies all the criteria in s. 18(2) of the Schedule in order to be removed from the MIG.

26The applicant submits that she had pre-existing left shoulder pain from February 2017 which was exacerbated as a result of the subject accident and became significantly worse.¹⁰ According to the applicant her left shoulder pain was a barrier to recovery in the treatment plans dated July 19, 2018 and April 2, 2019.¹¹

27The respondent takes the position that the applicant has not provided any medical evidence to suggest she was suffering from this shoulder pain at the time of the accident and there is no medical evidence from any health practitioner to explain why the shoulder pain would prevent her from achieving maximal medical recovery under the MIG.

28Section 18(2) requires compelling evidence of a pre-existing condition documented before the accident, which the applicant has presented. However, the last part of s.18(2) is where I find the applicant fails. There is no compelling evidence from any medical practitioner that her pre-existing condition will prevent her from achieving maximal recovery from the minor injury if she is limited to the $3,500 monetary limit. The applicant submits and relies upon the FSCO case of Washington v. Unifund Assurance Company, ¹² that where there is documented evidence by health practitioners that the applicant will require additional treatment to cope with the ongoing impairment, she will not achieve maximal recovery from her injuries within the MIG limits.

29However, the applicant does not provide the entire case law of Washington v. Unifund Assurance Company. Just one page of the decision is provided under the heading of “Legislative Provisions” which essentially outlines the definition of the MIG and a summary of s. 18(2) of what is required to be removed from the MIG by way of a pre-existing injury. In my view, the case is not supportive of the applicant’s position. Without compelling evidence of all three requirements of s. 18(2) the applicant cannot be considered to be outside of the MIG. The mere mention of a pre-existing injury alone is not sufficient.

30As a result, I find that the applicant has not persuaded me on a balance of probabilities that she has a pre-existing injury in accordance with s. 18(2) to be removed from the MIG.

31Despite finding that the applicant’s injuries fall within the definition of the MIG, the parties have not provided submissions or evidence that the MIG limit has been exhausted, as a result, I will turn to discuss whether the treatment plans and the psychological assessment are reasonable and necessary.

Are the three physiotherapy treatment plans reasonable and necessary?

32I find that the physiotherapy treatment plans are not reasonable and necessary for the following reasons.

33The applicant submits that pain relief is a legitimate medical and rehabilitative goal and the factors to consider if a treatment plan is reasonable and necessary are (1) whether the treatment goals as identified are reasonable, (2) these goals are being met to a reasonable degree and; (3) the overall costs of achieving these goals are reasonable taking into consideration both the degree of success and availability of other treatment alternatives.¹³

34The applicant then submits and relies upon the treatment plans themselves that the applicant is reporting pain relief and in support of the three factors that the treatment plan is reasonable and necessary. However, the treatment plan on its own is not compelling evidence in support of treatment. There must be compelling contemporaneous evidence in support of the treatment plan. In the present case, the applicant does not direct me to any evidence in support of the treatment, whether the applicant is feeling pain relief as a result of the treatment or in support of the three factors the applicant notes above.

35The presence of objective supporting evidence to justify treatment is key to determining whether the medical benefit is reasonable and necessary. A treatment plan without more, is not enough to establish treatment.¹⁴ As a result, I find that the applicant has not met her burden to prove on a balance of probabilities that the treatment plans are reasonable and necessary.

Psychological assessment

36For the following reasons I find that the psychological assessment is not reasonable and necessary.

37The applicant relies upon the psychological pre-screen interview in support of the psychological assessment. However, in my view, a psychological pre-screen interview where the provisional diagnosis is determined solely based on the applicant’s self-reporting is not sufficient evidence on its own. There must be contemporaneous supporting evidence of the need for the assessment. In the present case, other than an OCF-3 submitted by the applicant’s chiropractor of sleep difficulties and other psychological impairments, the applicant has not directed me to any evidence in support of a psychological assessment. I do not place any weight on the OCF-3’s in support of a psychological impairment as it would be beyond the scope of practice of a chiropractor to opine on psychological impairments of an applicant.

38As a result, I find that the psychological assessment is not reasonable and necessary.

Attendant Care

39Despite being listed as an issue in dispute, the applicant does not provide any submissions or evidence on her request for an attendant care benefit, as a result, the applicant’s claim for an attendant care benefit is dismissed.

ORDER

40As a result of the above and on a balance or probabilities, I find that:

(i) The applicant sustained predominately minor injuries as defined in the Schedule and, thus, she is subject to treatment within the monetary limits of the MIG;

(ii) The treatment plans and the cost examination are not reasonable and necessary;

(iii) The applicant is not entitled to an attendant care benefit; and

(iv) As there are no outstanding benefits, the applicant is not entitled to interest or an award.

Released: October 7, 2020

___________________________

Sandeep Johal

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
3. 3See s. 18(3) of the Schedule.
4. 4Applicant Book of Documents at Tab 8. Initial Psychological Pre-Screen Interview dated September 27, 2018.
5. 52017 CarswellOnt 19426 at para. 39.
6. 618-004282 v Certas Home and Auto Insurance Company, 2019 CanLII 43874 (ON LAT).
7. 7Ibid at para. 18. See also Applicant v Travelers Canada, 2017 CanLII 9346 (ON LAT) at para 31.
8. 8Applicant Book of Documents at Tabs 3 and 7.
9. 9FSCO A13-003926 dated July 7, 2015. (“Arruda”)
10. 10Applicant’s Book of Documents at Tab 5, Clinical Notes and Records of the Health-Pro Wellness dated May 17, 2018.
11. 11Ibid at Tabs 6 and 7.
12. 12FSCO A15-002024 dated September 14, 2016.
13. 13Esterreicher v. Non-Marine Underwriters, Mbrs. Of Lloyd’s [2008], O.F.S.C.D. No. 180 at para. 52.
14. 1417-002689 and Aviva Insurance, 2018 CanLII 2311 at para. 15.```