Citation: Ward v. Wawanesa Mutual Insurance Company, 2021 ONLAT 20-003416/AABS

Release date: 04/13/2021

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:

Shelby Ward

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Richard Stanchu, Paralegal

For the Respondent:

Erica Lewin, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was injured in an accident on July 27, 2017, and sought various benefits from the respondent, Wawanesa, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Wawanesa denied the benefits in dispute on the basis of its determination that the applicant’s accident-related impairments were predominantly minor injuries subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

a. 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 Minor Injury Guideline?

b. Is the applicant entitled to a medical benefit in the amount of $20.00 (original treatment plan in the amount of $1,320.00, partially approved in the amount of $1,300.00 which was approved up to the MIG limits) for physiotherapy, recommended by Back in Motion Physiotherapy in a treatment plan (OCF-18) dated March 5, 2018?

c. Is the applicant entitled to payment for the cost of examinations in the amount of $2,200.00 for a psychological assessment, recommended by Healthcare Management Group in a treatment plan submitted January 30, 2020?

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

RESULT

3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. He is not entitled to payment for the treatment plans in dispute or interest.

ANALYSIS

Applicability of the MIG

4Section 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. The Tribunal has also determined that chronic pain with functional impairment or psychological impairments may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

5The applicant submits that as a result of the accident he sustained injuries to his neck, right shoulder, lower back, right wrist and right foot as well as an aggravation of pain in his right leg from a previous accident. In addition, he submits has been experiencing frequent headaches, nervousness while driving, sleep difficulties, anxiety, fluctuating depression, and irritability, all of which are still present three and a half years after the accident. To this end, he relies on hospital and treatment records, two OCF-3s, the OCF-18s in dispute, an OCF-23 and a psychological assessment report dated July 18, 2020 by Dr. Lindal.

6In response, Wawanesa submits that the applicant has failed to demonstrate that his accident-related impairments warrant treatment beyond the MIG. It asserts that the applicant’s leg x-rays revealed hardware in good position with no changes, that he attended for a total of three treatment sessions post-accident but failed to continue with treatment until starting again in 2020, that the psychological assessment was completed three years post-accident with no evidence that he sought assistance from a mental health professional previously, that there are no accident-related entries in the OHIP summary and that there is no medical opinion that his pre-existing impairments were exacerbated and would prevent his recovery under the MIG. Wawanesa relies on four s. 44 reports to support its position that the applicant sustained predominantly minor injuries that are treatable within the MIG.

7I agree with Wawanesa and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.

8First, the actual physical injuries identified in the OCF-3’s all fall squarely within the definition of a minor injury, as they are listed as contusion and sprain and strain type injuries to the applicant’s back and knee. The applicant reports working full-time hours and is able to perform his activities of daily living without assistance. The applicant reported only attending a few sessions of physiotherapy post-accident and the applicant only recommenced treatment following the case conference in this matter, more than 2.5 years post-accident. He reports intermittent back pain relieved by movement and stretching. His headaches are relieved by Tylenol. Further, Dr. Gharsaa’s s. 44 orthopaedic surgeon report failed to identify any radiculopathy or musculoskeletal pathology or any signs of any ongoing objective orthopaedic impairment attributable to the accident. Accordingly, I find there is no indication in the file that his physical accident-related impairments should be considered outside of the definition of a minor injury under s. 3(1).

9Second, with regards to s. 18(2), an applicant may be removed from the MIG if they have evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that would preclude maximal medical recovery if they are kept within the confines of the MIG. The applicant consistently reports pre-existing issues with his tibia, fibula and ankle as a result of a 2012 accident that required the insertion of hardware. However, while the applicant reports pain in the area, the x-rays of the lower leg revealed no issues with the hardware or the fracture site and, again, Dr. Gharsaa found no indication of an objective impairment. The applicant does not have a family physician so there are no pre-accident or even contemporaneous notes in evidence to rely on. While the applicant should not be punished for not having a regular physician, the applicant did not direct the Tribunal to an opinion from a medical practitioner that this pre-existing impairment would prevent maximal medical recovery if he is kept within the MIG, as is required for removal under s. 18(2).

10Next, the Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment or if they meet three of the six criteria for chronic pain as provided by the AMA Guides. Here, the applicant references his reports of pain but does not point to a clear diagnosis of chronic pain syndrome nor does he describe how his chronic pain is causing functional impairment or how he would meet any of the six criteria under the AMA Guides for a chronic pain diagnosis. The only suggestion of a chronic condition is in the applicant’s submissions, which are not evidence. In the absence of specific submissions, I note that the applicant is self-employed, continues to drive, reports no issues with his personal care or daily activities, is not dependent on any prescription medication for his pain and there is limited evidence of pain or accident-related complaints in his OHIP summary, and no referrals for investigation into a chronic pain condition.

11Lastly, an applicant may escape the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of a minor injury under the Schedule. Here, the applicant relies on the July 18, 2020 psychological report of Dr. Lindal, who conducted a videoconference assessment and five psychometric tests which led to a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Specific Phobia, Situational Type (driver/passenger related). Wawanesa relies on the September 4, 2018 s. 44 psychological report from Dr. Saunders, who concluded that there was no evidence of a psychological impairment as a result of the accident.

12I prefer the report of Dr. Saunders over the report of Dr. Lindal for several reasons. First, Dr. Lindal’s assessment was completed three years post-accident in July 2020, which is not a contemporaneous indication of an accident-related psychological impairment. In contrast, Dr. Saunders’ assessment was conducted in September 2018, which is much closer in time to the accident and therefore a more reliable indication of the applicant’s accident-related psychological and emotional state.

13Second, there are no objective notations or reports of psychological complaints by the applicant in the medical evidence provided and it is unclear why the referral was made or by whom. Dr. Lindal’s report indicates that the applicant reported that he began experiencing psychological/emotional difficulties “after a period of a few days” post-accident, but there is no evidence to support this claim and at no point did the applicant seek or obtain psychological treatment in the three years post-accident.

14Third, in his report, Dr. Saunders states that the applicant attributed his recent “terrible mood” to tensions with his wife and not to the accident. Further, the applicant reported that his recent move to Sault Ste. Marie to be closer to his wife’s family was difficult for him. These reports raise issues of causation and call into question Dr. Lindal’s diagnoses that were based on mild test results. In addition, the applicant reported being able to drive a vehicle and ride as a passenger to Dr. Saunders in 2018, which undermines Dr. Lindal’s diagnosis of driver and passenger related specific phobia in 2020.

15Finally, Dr. Lindal did not review any of the applicant’s medical documentation but somehow determined the applicant’s impairment was “a direct consequence of the motor vehicle accident” even though his assessment was three years after the accident and where the applicant sought no treatment prior. I find Dr. Saunders’ report to be more in line with the medical evidence than Dr. Lindal’s and I assign it significantly more weight as a result.

16On the evidence, I find no reason to interfere with Wawanesa’s determination that the MIG applies. Accordingly, I find the applicant has not demonstrated that he meets any of the grounds that would justify removal from the MIG at over three years post-accident.

Are the treatment plans reasonable and necessary?

17Having determined that the applicant has not demonstrated that removal from the MIG is required, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required, as the MIG limits have been exhausted. As no benefits are overdue, it follows that no interest is payable.

ORDER

18The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. He is not entitled to payment for the treatment and assessment plans or interest.

Footnotes

1. 1O. Reg. 34/10, as amended.