Durham v. Wawanesa Mutual Insurance Company, 2021 CanLII 60470

Licence Appeal Tribunal

Citation: Durham v. Wawanesa Mutual Insurance Company, 2021 ONLAT 20-000350/AABS

Released Date: 07/07/2021

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:

Dianne Durham

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Robert Watt

APPEARANCES:

For the Applicant:

Dianne Durham, Applicant

Shane Henry, Counsel

For the Respondent:

Paul Sykes, Counsel

Court Reporter:

Guida Riccioni, Reporter

HEARD:

By way of Written Submissions

OVERVIEW

1The applicant was involved in an automobile accident on November 20, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The issues to be decided in the hearing are:

1. 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?

2. Is the applicant entitled to the medical benefits recommended by Revive Health Centres Inc.as follows:

(i) $1,061.60 for chiropractic services, in a treatment plan submitted on June 5, 2018?

(ii) $831.49 for physiotherapy services, in a treatment plan submitted on July 24, 2018?

(iii) $1,085.32 for chiropractic services, in a treatment plan submitted on December 7, 2018?

(iv) $1,000.71 for chiropractic services, in a treatment plan submitted on March 14, 2019?

(v) $1,508.37 for chiropractic services, in a treatment plan submitted on May 30, 2019?

(vi) $1,000.71 for chiropractic services, in a treatment plan submitted on March 14, 2019; and,

(vii) $1,423.76 for chiropractic services, in a treatment plan submitted on January 9, 2020?

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

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

RESULTS

3The applicant’s injuries are 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.

4The applicant is not entitled to any medical benefits as set out in paragraph 2.

5The applicant is not entitled to any award or interest.

BACKGROUND

6The applicant was rear ended on November 20, 2017, while she was stopped at a red light. No emergency personnel attended at the accident. The applicant was able to drive away from the accident. There was a small dent on the bumper.¹ The applicant attended at Humber River Hospital and complained of lower back pain, and headache, with some dizziness.²

7The applicant saw her family doctor, Dr. R. Gindi, on November 25, 2017, complaining of back pain. Dr. Gindi diagnosed the applicant with lumbar strain and recommended physiotherapy.³ Dr. Gindi completed a Disability Certificate (OCF-3) dated January 10, 2018, concluding that the applicant could return to work on modified duties; did not suffer a complete inability to carry on a normal life; and could perform regular housekeeping tasks. He diagnosed the applicant with neck and lower/upper back injury.

8Dr. Gindi’s note dated October 29, 2018 diagnosed neck and back strain. He noted that the applicant was not in favour of taking medicine.⁴ The applicant saw her family doctor five more times from November 22, 2019 to September 15, 2020, for non-accident issues. The last time the applicant visited her family doctor for accident-related issues was on January 30, 2020.

9Dr. M. Khaled, general physician, in his IE Report dated April 4, 2018, diagnosed the applicant with soft-tissue injuries, being Grade II whiplash to the neck and mechanical low back pain. He noted no significant orthopaedic or neurological sequelae.⁵ He concluded that the applicant’s injuries were sprains and strains only. In a second IE on October 10, 2018, Dr. Khaled came to the same conclusion as his first examination, noting that the applicant had improved by 25%.⁶

10Dr. D. Mandel, psychologist, in her IE report dated April 4, 2018, noted that the applicant suffered no psychological impairment, and that there was no psychological injury that would take the applicant out of the MIG.⁷

11Dr. M. Olsen, orthopaedic surgeon and pain specialist, in his IE report dated October 3, 2019, concluded that the applicant had cervicothoracic myofascial pain and thoracolumbar myofascial pain. He concluded that the applicant’s injuries were minor.⁸

12Dr. H. Ta, anesthesiologist, in her Pain Medicine Assessment Report dated October 30, 2020, showed that the applicant completed a Pain Disability Index which indicated that the applicant had very little or no pain in her functioning with home/family responsibility, social activity, self care, recreation and with her occupation.⁹

ANALYSIS

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 (MIG)?

Applicability of the MIG

13Section 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.”

14An 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 a psychological condition, may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

15I find that the applicant falls within the MIG and that there are no exceptions for taking her out of the MIG, based on the reasons set out below.

16The applicant’s position is that she has chronic pain because she has suffered from the neck and back pain for over six months The applicant relies on Dr. Ta’s report which diagnosed her with chronic pain syndrome and recommends that she see a chronic pain specialist. Dr. Ta is not a chronic pain specialist.

17The respondent’s position is that the applicant suffered minor injuries and falls within the MIG. The Respondent relies on the reports of Dr. Gindi, Dr. Khaled and Dr. Olsen who all diagnosed the applicant’s injuries as falling within the MIG. The respondent also relies on the fact that the applicant did not want to take any medicines to assist her in relieving her pain.

18I accept the reports of Dr. Gindi, Dr. Khaled and Dr. Olsen over Dr. Ta’s diagnosis of chronic pain syndrome, as Dr. Ta is not a chronic pain specialist. Dr. Ta’s report is also inconsistent with his diagnosis of chronic pain contrary to the findings of the Pain Disability Index which indicated that the applicant had very little or no pain in her functioning with home/family responsibility, social activity, self care, recreation and with her occupation. The applicant’s functionality is inconsistent with her having chronic pain.

19With 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. There is no evidence of any pre-accident injury that has been exacerbated by the accident.

20The Tribunal has also determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. I find no indication in the medical documentation that her lingering accident-related pain is causing functional impairment. Dr. Gindi in fact concluded that the applicant could return to work on modified duties, did not suffer a complete inability to carry on a normal life and could perform regular housekeeping tasks. Dr. Ta’s report indicated that the applicant had very little or no pain in her functioning with home/family responsibility, social activity, self care, recreation and with her occupation.

21Finally, an applicant may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). Dr. D. Mandel noted that the applicant suffered no psychological impairment and that there was no psychological injury that would take the applicant out of the MIG.

22Accordingly, for these reasons, I find the applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG.

23Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding the limits of the MIG have been exhausted. Therefore, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary under s. 16 is not required.

AWARD

24The applicant also sought an award under s. 10 of O. Reg. 664, submitting that the applicant is entitled to an award. Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. I find that an award is not appropriate because there are no benefits owing.

CONCLUSION

25The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the treatment and assessment plans in dispute are not reasonable and necessary, no interest is payable, and a s.10 award is not appropriate.

Footnotes

1. 1Hearing transcript dated March 15, 2021 at Tab B3 Respondent Brief questions 140-171 & Clinical notes and Records of Humber River hospital at Tab B4 Respondent Brief p10
2. 2Ibid 1
3. 3Dr. Gindi’s Clinical Notes and records Respondent’s Brief at Tab B5
4. 4Ibid Tab B5.p 19
5. 5Report of Dr. Khaled dated April 4, 2018 Respondent Brief Tab B8 p8-10
6. 6Report of Dr. Mandel dated October 10, 2018 respondent’s brief Tab B10
7. 7Report of Dr. Mandel dated April 4, 2018 Respondent’s Brief Tab B9
8. 8Report of Dr. Olsen dated October 3, 2019 respondent’s brief Tab B11
9. 9Pain Medicine Assessment Report of Dr. Ta dated November 13, 2020 Applicant’s Brief Tab 2