Citation: Butrus v. Wawanesa Mutual Insurance Company, 2021 ONLAT 19-011365/AABS02/04/2021

Released: February 5, 2021

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:

Sundos Butrus

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Jeton Memeti, Paralegal

For the Respondent:

James Schmidt, Counsel

HEARD:

By way of written submissions

1The applicant, Sundos Butrus (“Ms. Butrus”), was injured in an automobile accident on December 5, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Wawanesa Mutual Insurance Company (“Wawanesa”), the respondent.

2Wawanesa denied Ms. Butrus’ claims for chiropractic treatment, a psychological assessment and a chronic pain assessment because it had determined that all of Ms. Butrus’ injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the “MIG”).² As a result, Ms. Butrus submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on March 3, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

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

(ii) Is Ms. Butrus entitled to chiropractic treatment recommended by Mackenzie Medical Rehabilitation Centre Inc. as follows:

(a) $1,977.05 in a treatment plan (“OCF-18”) dated June 7, 2019, and denied on June 19, 2019?

(b) $1,384.70 in an OCF-18 dated July 30, 2019, and denied on August 9, 2019?

(iii) Is Ms. Butrus entitled to $2,518.66 for a psychological assessment recommended by Dr. Judith Pilowsky, psychologist, in an OCF-18 dated May 16, 2019, and denied on June 3, 2019?

(iv) Is Ms. Butrus entitled to $2,410.00 for a chronic pain assessment recommended by All Health Medical Centre in an OCF-18 dated July 31, 2020, and denied on August 13, 2020?³

(v) Is Wawanesa liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to Ms. Butrus?

(vi) Is Ms. Butrus entitled to interest on any overdue payment of benefits?

RESULT

5I find that Ms. Butrus has not met her onus of proving that her accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, it is unnecessary for me to consider the reasonableness or necessity of the disputed treatment plans. Ms. Butrus is also not entitled to an award or interest, and the application is dismissed.

ANALYSIS

The Minor Injury Guideline (“MIG”)

6The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, 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 defined in the Schedule.

7Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.⁴

8Ms. Butrus’ position is unclear as to why she should be entitled to coverage beyond the MIG $3,500.00 cap. Ms. Butrus submitted:

The medical evidence on file will illustrate that the applicant [sic] injuries have not and cannot be treated within the minor injury guideline.

The applicant’s injuries cannot be treated within the MIG; she has incurred more than the MIG allows and the medical documentation will prove this and the necessity for ongoing treatment.⁵

9Later in her submissions, Ms. Butrus lists the medical documentation that she submitted for the hearing and highlighted certain portions of the documents but failed to provide any discussion or analysis as to how, or to which issue, I should apply the medical evidence to. The Tribunal has been clear that it is the parties’ obligation, not the Tribunal’s, to make a party’s case. It is not acceptable for a party to point vaguely to a body of evidence or expect the Tribunal to puzzle through documents in order to decipher and assemble an evidentiary foundation for one’s case.⁶

10Notwithstanding the lack of guidance in Ms. Butrus’ submissions, I find that upon review of all of the evidence before me that Ms. Butrus has not met her burden of proving that her accident-related impairments require treatment beyond the MIG on the basis of chronic pain, pre-existing conditions and/or a psychological impairment.

Chronic pain

11Wawanesa submitted that chronic pain which is sequela to soft tissue injuries is, by definition, within the MIG.⁷ I disagree.

12In the reconsideration decision of T.S. v. Aviva General Insurance Canada,⁸ the Executive Chair of the Tribunal held that the definition of minor injury in s. 3(1) of the Schedule does not encompass an impairment such as chronic pain.⁹ The Executive Chair further described chronic pain as, “ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual's well-being.”¹⁰

13While I am not bound by other Tribunal decisions, I find that T.S. v. Aviva is persuasive in determining whether or not an applicant suffers from chronic pain and if, as a result, they should be removed from the MIG. I also prefer the reasoning in T.S. v. Aviva over Wawanesa’s submission as Wawanesa provided no authority for its position that chronic pain that is sequela to soft tissue injuries would still fall under the MIG.

14In addition to the principles outlined in T.S. v. Aviva, the Tribunal has also consistently found that where pain is severe, constant and causes functional impairment, an applicant may be removed from the MIG. Additionally, removal from the MIG for chronic pain does not require a diagnosis of chronic pain or chronic pain syndrome by a physician.

15In this matter, however, I find that the evidence does not support a finding of chronic pain that was constant or that caused a functional impairment thereby adversely affecting Ms. Butrus’ well-being. Following the accident, Ms. Butrus consistently complained of pain in her neck and back which persisted well beyond 3 to 6 months post-accident. Ms. Butrus described her neck and back pain as “intermittent” in the March 11, 2019 Insurer’s Examination (“IE”) Section 44 (In Person) Non-Earner Benefit Psychologist’s Report by Dr. R. Silverman, psychologist,¹¹ and also in the Mackenzie Medical Rehabilitation Centre Intake Consultation Data Sheet & Notes dated December 13, 2018.¹²

16The only evidence before me that describes Ms. Butrus’ pain complaints as “constant” is the January 23, 2020 Clinic Note by Dr. Farhan Siddiqui of Releva Chronic Pain Centre.¹³ In this note however, Dr. Siddiqui fails to provide any further details or even identify which of Ms. Butrus’ pain complaints were constant – her neck, back, shoulders or all of them. Given the lack of detail in Dr. Siddiqui’s clinic note and also the absence of any other evidence describing Ms. Butrus’ pain as constant before me, I place greater weight on Dr. Silverman’s March 11, 2019 IE report and the Intake Consultation Data Sheet and find that Ms. Butrus’ neck and back pain was intermittent.

17Regarding Ms. Butrus’ functionality, the only evidence that provides details of any changes in her post-accident activities was in Dr. Silverman’s March 11, 2019 IE Psychology Report. Dr. Silverman reported that Ms. Butrus had resumed her housekeeping duties at the time of his assessment but was performing them more slowly and was avoiding heavy housework.¹⁴ Ms. Butrus also reported that her sister-in-law would clean her home twice per week and complete the laundry.¹⁵ Ms. Butrus had resumed full child-care duties at this time as well.¹⁶

18While it is clear that the accident impaired Ms. Butrus’ functionality in completing her housekeeping duties at the time of Dr. Silverman’s IE report, Dr. Silverman’s IE report was completed just over three months post-accident and, therefore, Ms. Butrus was still well within the acute injury period. The other documentation that speaks to Ms. Butrus’ functionality after the initial 3 to 6 months acute injury period provides no details about her functioning. For example, Dr. Siddiqui’s January 23, 2020 clinic note under functional impact states, “negatively affects functional ability, daily house hold [sic] tasks, social activities.”¹⁷ No further details are provided. Likewise, Dr. Siddiqui’s January 30, 2020, February 6, 2020, February 13, 2020, February 2, 2020, February 17, 2020 and March 3, 2020 clinic notes provide no further details as to how Ms. Butrus’ pain was affecting her function.

19Wawanesa also raised the issue of causation of Ms. Butrus’ back pain. Wawanesa submitted that the clinical notes and records (“CNRs”) of Dr. Antoinette Mikhail, Ms. Butrus’ family physician, show that Ms. Butrus made substantially similar back pain complaints on October 27, 2017, May 15, 2018 and July 10, 2018. In fact, the assessment note of “Lumbar Strain Lumbago Coccydnia Sciatica” was reflected in Dr. Mikhail’s CNRs for these three visits and also for seven CNR entries post-accident between February 25, 2019 and November 25, 2019. Further calling causation into question was Dr. Siddiqui’s January 23, 2020 clinic note which stated in regard to onset, “gradual, backpain started spontaneously; worsened on Dec 5, 2018 after MVC.”¹⁸ Finally, a thoracic and lumbar spine x-ray dated November 25, 2019 showed mild progression degenerative change lower lumbar spine when it was compared with a pre-accident 2017 examination.¹⁹

20For whatever reason, even after Wawanesa raised the issue of causation in its submissions, Ms. Butrus failed to file reply submissions. Therefore, I have no submissions from her to address the issue of causation. Given the evidence that is before me, I find that Ms. Butrus has not demonstrated on a balance of probabilities that her back pain was related to the accident and not as a result of her pre-existing degenerative changes.

21For all of these reasons, I find that Ms. Butrus has failed to prove that she has chronic pain that was constant and adversely affected her well-being and functionality as a result of the accident.

Pre-existing condition

22The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

23While it is clear that Ms. Butrus had documented pre-existing back pain, I agree with Wawanesa that Ms. Butrus has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of a pre-existing condition because, Ms. Butrus submitted no evidence that her pre-existing back pain would prevent maximal recovery under the MIG.

Psychological impairment

24Lastly, psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injuries.”

25I find that Ms. Butrus has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of a psychological impairment.

26Ms. Butrus filed as evidence a May 16, 2019 OCF-18 in the amount of $2,518.66 for a psychological assessment which included an Initial Brief Psychological Interview/Intake Screening report by Dr. Pilowsky. In this report, Dr. Pilowsky provides a diagnostic impression of Ms. Butrus that included depressive symptoms and post-traumatic anxiety as well as pain. Dr. Pilowsky opined that, “this patient’s psychological problems, secondary to the subject accident, are significant and do not fit the criteria for the MIG.”²⁰

27In contrast, Wawanesa submitted Dr. Silverman’s March 11, 2019 IE report in which Dr. Silverman opined that Ms. Butrus did not develop a DSM-5 psychological disorder in connection with the subject accident.²¹

28In considering the evidence from Dr. Pilowsky and from Dr. Silverman, I place greater weight on Dr. Silverman’s report because his opinion is supported by Dr. Mikhail’s CNRs.

29For example, there is only one entry in Dr. Mikhail’s CNRs post-accident that makes any mention of a psychological complaint. In the January 21, 2019 CNR entry, Dr. Mikhail noted that Ms. Butrus had an “anxious look” and that her mood and affect were low. The CNRs for this visit recommended psychotherapy and show that Ms. Butrus was prescribed Lorazepam. The assessment entry for this visit was noted as, “anxiety neurosis hysteria neurasthenia obsessive compulsive neurosis,” which I agree with Wawanesa is an OHIP code entry and not a formal diagnosis.

30It is unclear to me, however, if this one psychological complaint by Ms. Butrus was accident-related, as Dr. Mikhail did not mention the accident at all in this CNR entry even though she repeatedly noted “hx [history] of MVA” in all other accident-related visits. Even if this CNR entry was accident-related, I am not satisfied that this psychological complaint was anything more than minor as there is no evidence that Ms. Butrus attended for psychotherapy as recommended and no further prescriptions were provided for Lorazepam beyond the January 21, 2019 visit.

31I acknowledge that Dr. Siddiqui’s January 23, 2020 clinic note stated that Ms. Butrus reported disturbances in mood, sleep and energy, that she was irritable, frustrated and angry and had difficulty coping with her pain, and that he recommended psychotherapy and cognitive behavioural therapy for Ms. Butrus. Dr. Siddiqui, however, provided no discussion or analysis on these complaints and his subsequent recommendations against two contemporaneous CNR entries of Dr. Mikhail. Ms. Butrus saw Dr. Mikhail on January 13, 2020 and on January 17, 2020, twice within the 10 days prior to Dr. Siddiqui’s clinical note. Neither of these CNR entries mention any psychological complaints or issues with mood, sleep or energy.

32For all of these reasons, I prefer Dr. Mikhail’s CNRs and Dr. Silverman’s opinion in his March 11, 2019 IE report and find that Ms. Butrus did not suffer a psychological impairment as a result of the accident.

33Therefore, I find that Ms. Butrus has failed to meet her burden to prove that her accident-related impairments warrant treatment beyond the MIG.

34As I have found that Ms. Butrus’ injuries fall within the MIG, it is unnecessary for me to consider the reasonableness and necessity of the dispute treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG have been exhausted.²²

Award

35Section 10 of O. Reg. 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

36As I have found that Ms. Butrus is properly within the MIG and, therefore, there are no payment of benefits owing, there is no basis upon which to consider an award in this matter.

Interest

37As there are no benefits owing, no interest is payable.

CONCLUSION

38For the reasons outlined above, I find that:

(i) Ms. Butrus sustained predominantly minor injuries as defined under the Schedule. Accordingly, it is not necessary for me to determine whether or not the treatment plans are reasonable and necessary because, the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted;

(ii) Ms. Butrus is not entitled to an award under O. Reg. 664 and no interest is payable; and

(iii) This application is dismissed.

Released: February 4, 2021