Citation: Estafanos v. Wawanesa Mutual Insurance Company, 2021 ONLAT 20-000127

Release date: 2021/03/05

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:

Steve Estafanos

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Omar Duhaney, Paralegal

For the Respondent:

Paul Omeziri, Counsel

HEARD:

By Way of Written Submissions

REASONS FOR DECISION

OVERVIEW

1Steve Estafanos (“applicant”), was injured in an automobile accident on August 23, 2017 (“accident”). The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was denied certain benefits by Wawanesa Mutual Insurance Company (“respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The respondent determined that the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (“MIG”).² The respondent also submits that, even if the MIG is found not applicable, the applicant has not established that the disputed treatment plan is reasonable and necessary. The applicant’s position is the opposite.

ISSUES

3The issues to be decided in this hearing are:

i. Are the applicant’s 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 MIG?

ii. Is the applicant entitled to $3,151.63 for chiropractic services as a rehabilitation benefit, recommended by Scarborough Health & Wellness in a treatment plan (OCF-18) submitted on July 19, 2018?

RESULT

4For the reasons outlined above, I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. The applicant is not entitled to $3,151.63 for chiropractic services described in the disputed treatment plan. No interest is payable.

LAW

5The MIG establishes a treatment framework available to an injured person who sustains 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 sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”. Under s. 18(1) of the Schedule, injuries that are defined as a “minor injury” are subject to a $3,500.00 funding limit on treatment.

6To request treatment above the $3,500.00 funding limit, the applicant must prove that his or her injuries do not fall within the definition of “minor injury”. The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner, that a pre-existing condition documented before the accident will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing that an impairment sustained in the accident is not a predominantly minor injury.

7The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

8Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.

ANALYSIS

Are the Applicant’s Injuries In the MIG?

9The applicant concedes that the injuries sustained in the accident constitute minor injuries as defined by the Schedule.⁴ Based on this concession, I find that the applicant’s physical injuries are in the MIG.

10However, the applicant argues that his pre-existing right ankle condition and psychological injury removes him from the MIG.

Does the Applicant have a Pre-existing Right Ankle Condition or Psychological Injury from the Accident That Would Remove him from the MIG?

11The applicant submits that he should be removed from the MIG because his pre-existing right ankle condition was exacerbated by the injuries he sustained in the accident and he could not achieve maximal medical recovery within the MIG limits. The applicant relies his medical records including those of his family physician Dr. Press, his orthopaedic surgeons Dr. Farno and Dr. Latham and respondent’s general practitioner Dr. Khaled. The applicant’s submissions also suggest that the applicant suffered psychological injury in the accident that would remove him from the MIG.

12The respondent submits that the applicant does not have a pre-existing ankle condition or psychological injury from the accident that would remove him from the MIG.

13I find that the applicant has brought forward no compelling evidence provided by a health practitioner that was documented before the accident of a pre-existing right ankle condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit. I also find there is no persuasive evidence that the applicant suffered a psychological injury that would remove him from the MIG.

14The records of Dr. Latham, applicant’s orthopaedic surgeon, and others document that the applicant fractured his right ankle in 2009, imaging was done, and the ankle treated with a cast at that time.

15There is no evidence from any of the applicant’s physicians or in the post-accident imaging indicating the applicant’s right ankle suffered anything other than soft tissue injuries in the accident or that his ankle fracture from eight years ago was exacerbated in the accident.

16Post-accident the applicant first saw Dr. Press, his family physician, on September 26, 2017 who noted tenderness over the right ankle with no obvious abnormality. In a March 2018 visit, Dr. Press noted the applicant was wearing an ankle brace and recorded that the applicant’s symptoms may well be related to his previous ankle fracture and recommended x-ray. The May 2019 MRI showed injuries consistent with the 2009 fracture with no new acute injury indicated.

17Consistent with only soft tissue injury to the applicant’s right ankle resulting from the accident, Dr. Khaled, in September 2018 found right ankle strain and noted that the applicant was waiting to see an orthopaedic surgeon.

18Dr. Press noted the applicant’s complaints of discomfort and some pain in the right ankle in May 2018, noted x-rays showed no acute abnormality and assessed only “some mild tenderness on eversion internally of the right ankle”. Dr. Press referred the applicant to Dr. Farno, orthopaedic surgeon, who in June 2018 noted pain and referred the applicant to Dr. Latham, a foot and ankle orthopaedic surgeon.

19Dr. Latham assessed the applicant for the first time in January 2019 at which time he noted that the applicant said his right ankle pain increased after the accident. In May 2019, Dr. Latham reported to Dr. Farno that the applicant has had right ankle pain for 10 years since the fracture. Dr. Latham found no gross deformity of the ankle joint but noted pain mainly lateral side and restricted range of motion of the ankle joint. Dr. Latham reported the CT scan showed OCD of the ankle joint mainly post lateral side of the ankle but did not attribute any part of the applicant’s ankle condition to the accident. Dr. Latham recommended scope, local bone graft and DENOVO procedure right ankle OCD lesion.

20Considered in their totality, the weight of these and other medical records submitted by the applicant do not constitute compelling evidence of a pre-existing right ankle condition that will prevent the applicant from achieving maximal recovery if treated within the MIG. To the contrary, the weight of the evidence is that the applicant’s complaints are more likely than not related to the 2009 fracture, not the accident.

21I therefore find there is insufficient medical evidence before me that establishes the applicant should not be subject to the MIG because of any pre-existing right ankle condition.

22I also find that the applicant has not provided any persuasive evidence to meet his burden of proof that he suffers from psychological impairment caused by the accident justifying treatment beyond the MIG as suggested by the applicant’s submissions.

23Although Dr. Nalli, applicant’s chiropractor, lists “other anxiety disorders, nervousness and state of emotional shock and stress, unspecified” in the OCF-3, disability certificate, dated August 30, 2017, the applicant was not referred by Dr. Press or any of his other physicians to any mental health specialist for assessment. He continued to work and further his education post-accident and there is no evidence of any significant psychological impairment as a result of the accident.

24Further, Dr. Rubenstein, applicant’s psychologist, assessed the applicant and opined in January 2018 that he has not sustained any diagnosable psychological impairment as a result of the accident.

Is the Treatment Plan for $3,151.63 for Chiropractic Services Reasonable and Necessary?

25The applicant’s position is that the disputed treatment plan is reasonable and necessary. The respondent’s position is that the applicant has had ankle pain for ten years and attended physiotherapy pre and post-accident with no improvement.

26I find that the applicant is not entitled to this disputed treatment plan by Dr. Nalli dated July 11, 2018 for chiropractic, physiotherapy and massage services because the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary.

27There is little support for this disputed treatment plan from the physicians who have treated or assessed the applicant. Dr. Press does not appear to support the reasonableness and necessity of continued physical therapy. May 10, 2018 Dr. Press writes that “I am not sure what further benefit therapy…will be…” June 6, 2018 Dr. Farno reports that he gave the applicant a requisition for “physiotherapy” without any detail or any explanation as to how or why this may be reasonable and necessary to treat injuries arising from the accident. September 25, 2018 Dr. Khaled opines that no further facility-based therapies are required and specifically opines that this disputed treatment plan is not reasonable and necessary. January 16, 2019, Dr. Latham reports that the applicant told him he has had “trial PT, ankle bracing prn w little improvement”. Dr. Latham does not mention or recommend physical therapy.

28There is little evidence as to how the proposed treatment will achieve its goals or evidence establishing that the proposed treatment is reasonable and necessary as a result of injuries suffered in the accident, or that the overall cost is reasonable and necessary except from Dr. Nalli, the author of the disputed treatment plan. It is well established that a treatment plan, without more, is not sufficient evidence to establish an applicant’s entitlement on the basis of reasonableness and necessity.

Interest

29The Tribunal’s Order made June 17, 2020 confirms the applicant is not requesting interest. In his written submissions for this hearing, the applicant requested interest for all overdue payments.

30Interest is not payable as no benefits are payable.

ORDER

31For the reasons outlined above, I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. The applicant is not entitled to $3,151.63 for chiropractic services described in the disputed treatment plan. No interest is payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.
4. 4Applicant’s submissions dated October 16, 2020, para 12.