Citation: Y.D. vs. Wawanesa Mutual Insurance Company 2020 ONLAT 19-001233/AABS

Released Date: 10/19/2020

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:

Y.D.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Joshua David, Counsel

For the Respondent:

Johnathan Heeney, Counsel

HEARD:

Via written submissions

OVERVIEW

1Y.D. was injured in an accident on December 23, 2015, and sought various benefits from the respondent, Wawanesa, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). Wawanesa paid benefits up to the $3,500.00 limit of the Minor Injury Guideline (“MIG”) and denied the payment of benefits beyond the limit based on its determination that Y.D.’s accident-related impairments were predominantly minor injuries, subject to treatment within the MIG. Y.D. disagreed, arguing that he suffers from chronic pain, and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

Preliminary Issue

i. Is the claim for chiropractic treatment in the amount of $1,053.84 statute-barred because of the applicant’s failure to attend a s. 44 insurer’s examination (“IE”)?

Substantive Issues

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 MIG?

ii. Is the applicant entitled to receive a medical benefit in the amount of $1,628.39 for chiropractic treatment, recommended by Kingsbridge Rehab Clinic in a treatment plan dated March 2, 2017, and denied by the respondent on March 14, 2017?

iii. Is the applicant entitled to receive a medical benefit in the amount of $1,053.84 for chiropractic treatment, recommended by Kingsbridge Rehab Clinic in a treatment plan dated March 23, 2018, and denied by the respondent on March 30, 2018?

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

RESULT

3Y.D. is statute-barred from proceeding with his claim for chiropractic treatment due to his failure to attend a properly scheduled s. 44 IE.

4Y.D. has not demonstrated that he has chronic pain that warrants removal from the MIG. As the MIG limits have been exhausted, he is not entitled to payment for the treatment plans in dispute.

ANALYSIS

Preliminary Issue

5I find that Y.D. is statute-barred from proceeding with his claim for chiropractic treatment in the amount of $1,053.84 due to his failure to attend a properly scheduled s. 44 IE.

6Y.D. submitted this OCF-18 to Wawanesa on March 23, 2018. On April 3, 2018, Wawanesa confirmed receipt and indicated that it would be scheduling a s. 44 IE to determine whether Y.D.’s impairments fell within the MIG because there was insufficient medical documentation to support his claim. On April 9, 2018, Wawanesa sent its IE notice to Y.D. scheduling the s. 44 IE for April 23, 2018. Y.D. allegedly did not attend for the examination. On April 24, 2018, Wawanesa sent a notice to Y.D. indicating that due to his non-attendance at the IE, it was denying payment of the OCF-18. At the case conference giving rise to this written hearing, Wawanesa raised the preliminary issue that Y.D. was statute-barred form proceeding with his claim for this benefit due to his non-attendance.

7In submissions, Y.D. argues that Wawanesa’s “arbitrary scheduling was a mere 2 weeks from the date of the received correspondence with not enough time for [Y.D.] to sort out his schedule appropriately.” Further, Y.D. submits that “no attempt was made to facilitate a date that was convenient” for him beforehand. In response, Wawanesa submits that the IE notice was properly served and scheduled in accordance with s. 44, that Y.D. never provided an explanation for his non-attendance at the IE, that he never contacted Wawanesa before or after the notice was received to dispute the date it was scheduled or provide an alternative date that was convenient for him, that its request for the IE was reasonable and that, pursuant to s. 55, he is statute-barred.

8I agree with Wawanesa. While s. 44(9)2(i) of the Schedule states that the insurer shall make reasonable efforts to schedule an IE for a day, time and location that are convenient for the insured to attend, Y.D. has provided no evidence that he notified or attempted to notify Wawanesa that the April 23, 2018 IE date scheduled two weeks from the date of notice was not convenient for him. While I am also alive to Y.D.’s submission that the IE was schedule a “mere” two weeks from the date of the notice, s. 44(6) actually only requires the insurer to provide the insured with five business days’ notice, unless the parties mutually agree otherwise. Since there is no indication of an agreement between the parties to this effect, the period of time between Wawanesa’s s. 44 notice to Y.D. and the scheduled IE was greater than what the Schedule mandates and is not “arbitrary” as alleged. An insurer is required to be reasonable when scheduling an IE, but I find this obligation to be reasonable cuts both ways. The insured is also expected to notify the insurer that they cannot attend for certain dates in advance, or, upon receipt of a notice that conflicts with their schedule, provide reasonable notice that they cannot attend and reschedule. This is mutually beneficial to the parties and a failure to do so on the part of the insured results in the risk of a benefit being denied for non-attendance.

9I find this is the case here, as it appears Y.D.’s first objection to the scheduling of the IE and/or explanation for his non-attendance only came in his written submissions for this hearing, over two years later. Accordingly, I find Wawanesa properly scheduled the s. 44 and that Y.D. did not attend. Therefore, he is statute-barred from proceeding with his claim for this benefit under s. 55.

The applicability of the MIG

10Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. Further, the Tribunal has found that evidence of chronic pain that causes functional impairment justifies removal from the MIG. In all cases, the insured bears the burden of proof on a balance of probabilities.

11I find Y.D. has not met his burden to prove that he suffers from chronic pain that warrants removal from the MIG. Y.D. submits that he should be removed from the confines of the MIG due to his chronic pain from the accident. He submits that in the five years post accident, he has been consistently complaining of neck pain, upper and lower back pain and knee pain. As a result of his accident-related injuries, he submits that he has had to compensate for these impairments by relying on his shoulders more, particularly his left shoulder. As a result, he directs the Tribunal to a left shoulder MRI from 2019 that reveals tendinopathy in the subscapularis and supraspinatus, as well as trace fluid in the subacromial subdeltoid bursa. Y.D. submits that his medical evidence reveals that he required further treatment, as recommended by Dr. Rajwani in 2017, through a self-directed exercise program, and a physiotherapy program with anti-inflammatory medication as recommended by Dr. Chan in 2019.

12While I am alive to Y.D.’s subjective reports of pain, I find he has not relied on any medical or expert opinion that would justify removal from the MIG on the basis of chronic pain. He directs the Tribunal to sporadic complaints of pain in the treatment notes from Kingsbridge Rehab, but has not provided any clinical notes and records from a physician that demonstrates continuous complaints of pain, makes recommendations or referrals for pain treatment or provides a diagnosis of chronic pain or chronic pain syndrome. While a diagnosis is not strictly required, I find there is also limited evidence beyond Y.G.’s self-reporting of functional impairment due to chronic pain. Indeed, as Wawanesa submits, Y.G. did not miss time from work as a forklift operator/day labourer, continues to work in a physically demanding job, and seemingly does not take or has not filled any prescription medications for his pain.

13Wawanesa relies on two reports of Dr. Rajwani from April 2017 and October 2019. In both reports, while Dr. Rajwani notes Y.D.’s reports of pain, he finds that Y.D. suffered soft-tissue injuries as a result of what was, by all accounts, a minor accident. Dr. Rajwani does not diagnose chronic pain, does not find any related psychosocial elements to Y.D.’s pain and does not make any orthopaedic or neurological findings in his physical examination.

14I find limited to evidence to support Y.D. claim that his identified impairments fall outside the definition of minor under s. 3, as the MRI revealed tendonitis with no signs of a tear and an x-ray conducted in 2018 revealed normal findings. His visit with Dr. Chan in June 2019 revealed “slight discomfort” in his shoulder but otherwise normal range of motion and no diagnosis of chronic pain. While Y.D. submits that his pain is a result of the accident, I find he has provided limited evidence to prove causation nearly five years later. Under s. 18(2), Y.D. has also not provided compelling evidence of any pre-existing condition or pain that would have been exacerbated by the accident to warrant removal from the MIG.

15Further, Wawanesa submits that Y.D. has failed to provide documentation that it reasonably requested, such as his extended health benefits file from Manulife to prove that he does not have access to funding through his provider, the clinical notes and records of his family physician, Dr. Lin, to prove continuous and contemporaneous complaints, or his OHIP summary. While the Tribunal would not draw an adverse inference due to these omissions, as requested by Wawanesa, I do find that these documents would likely have been helpful to Y.D. and would have assisted the Tribunal in its analysis, as there was a dearth of medical evidence provided by Y.D. to support his claim.

16As a result, I find Y.G. has not demonstrated that his accident-related impairments have resulted in chronic pain that justifies removal from and treatment beyond the MIG nearly five years post-accident. On the evidence, I would not interfere with Wawanesa’s determination.

17Having determined that Y.G.’s accident-related impairments are properly within the MIG, it is my understanding that the MIG limits have been exhausted. Accordingly, an analysis of whether the remaining treatment plan in dispute is reasonable and necessary under s. 15 is not required. As no benefits are overdue, it follows that no interest is payable.

CONCLUSION

18Y.D. is statute-barred from proceeding with his claim for chiropractic treatment due to his failure to attend a properly scheduled s. 44 IE.

19Y.D. has not demonstrated that he has chronic pain that warrants removal from the MIG. As the MIG limits have been exhausted, he is not entitled to payment for the treatment plans in dispute. No interest is payable.