Landoy v. Wawanesa Mutual Insurance Company, 2022 CanLII 20143

Citation: Landoy v. Wawanesa Mutual Insurance Company, 2022 ONLAT 20-005845/AABS

Licence Appeal Tribunal File Number: 20-005845/AABS

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:

Rhoda Landoy

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION AND ORDER

VICE-CHAIR: Chloe Lester

APPEARANCES:

For the Applicant: Rhoda Landoy, Applicant Tanjoyt Deol, Counsel

For the Respondent: Shelley Budd, Representative Farid Mahdi, Counsel

HEARD: By Way of Written Submissions

REASONS FOR DECISION

BACKGROUND

1The applicant was involved in an automobile accident on December 1, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).¹

2The applicant claims that based on her pre-existing conditions and accident-related injuries she should receive treatment beyond the $3,500.00 Minor Injury Guideline (“MIG”)² limits.

3Based on the initial application, medical reports and assessments, the respondent determined the applicant’s injuries fell within the MIG and denied chiropractic services and a mental health assessment.

4As a result of the respondent’s denial, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.³

ISSUES

5The issues to be determined in this hearing are:

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 MIG?

b. Is the applicant entitled to a medical benefit for $2,743.78 for chiropractic treatment, proposed by New Wave Health Centre in a treatment plan/OCF-18 (“plan”) submitted March 21, 2018?

c. Is the applicant entitled to a cost of examination for $2,000.00 for a mental health assessment, proposed by Toronto Central Diagnostic in a treatment plan submitted on March 27, 2018?

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

RESULTS

6The applicant’s injuries are not minor and, she is entitled to apply for treatment outside of MIG limits.

7The applicant is entitled to the chiropractic treatment plan.

8The applicant is entitled to a cost of examination for a mental health assessment.

9The applicant is entitled to interest if the treatment plans have been incurred.

THE MINOR INJURY GUIDELINE

10The MIG establishes a treatment framework for injured persons who sustain a minor injury because of an accident. A “minor injury” is defined in the Schedule as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

11To request treatment above the $3,500.00 funding limit, the applicant must prove, on the balance of probabilities, that her injuries do not fall within the definition of minor injury in section 3 of the Schedule. The applicant can establish that by:

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

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

12The applicant argues that her injuries should not be classified as minor because she was diagnosed with psychological impairments, she has chronic pain, and she had a pre-existing condition of insomnia that would affect her recovery within the MIG.

13The respondent argues the injuries sustained in this car accident were soft tissue injuries and that the pre-existing injuries would not preclude the applicant from achieving maximal medical recovery within the MIG. Also, the respondent argues that if the applicant’s injuries are not minor that the applicant still has the onus to prove the reasonableness and necessity of the treatment plans. In any event, the respondent argues that their medical assessors have opined the injuries were minor and that she should have attained maximal recovery within the MIG limits.

14For an applicant to be removed from the MIG, there must be:

…compelling evidence to be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any prepared by a health practitioner.

The existence of any pre-existing condition will not automatically exclude a person’s impairment from this Guideline. It is intended and expected that the vast majority of pre-existing conditions will not do so.

Only in extremely limited instances, where compelling evidence provided by a health practitioner satisfactorily demonstrates that a pre-existing condition that was documented by a health practitioner before the accident, and that will prevent a person from achieving maximal recovery from the minor injury for the reasons described above, is the person’s impairment to be determined not to come within this Guideline. Exclusion of a person from this Guideline based on reasons or evidence falling short of this requirement is inconsistent with the intent of the SABS and this Guideline.⁴

15I do not find that the applicant had a pre-existing condition that prevented her from achieving maximal recovery within the MIG limits. The applicant claims that her pre-existing condition of insomnia affects her post-accident treatment. A simple assertion of a pre-existing condition is not enough to support removal from the MIG. Medical evidence needs to be provided that demonstrates how that condition prevents the applicant from achieving maximal recovery within the MIG or that the condition was worsened by the accident. I do not have any evidence to support how the pre-existing condition of insomnia prevents her from achieving maximal recovery within the MIG from her accident-related injuries. The applicant’s Family GP, Dr. Atwal’s, clinical records do not note any exacerbation of the pre-existing conditions as a result of the accident. Therefore, I cannot conclude that the applicant’s pre-existing conditions were affected by the accident that it would affect maximal recovery within the MIG.

16In relation to the injuries that occurred as a result of the accident, Dr. Atwal saw the applicant two days after the accident and diagnosed her with strains to multiple body parts, anxiety, and depression.⁵ The applicant was referred for mental health therapy.⁶

17The respondent argues that even if the applicant is diagnosed with psychological impairments, the applicant must prove that it is a result of the accident and not because of sequelae from the minor injuries.

18I find that the applicant’s psychological impairments are because of the accident and are not sequelae. When the applicant saw Dr. Atwal throughout the month following the accident, Dr. Atwal attributed the anxiety to driving and feelings of being depressed. The anxiety continued to be addressed in further visits, although improving.⁷

19The respondent sent the applicant to an insurer’s examination to address the applicability of the MIG. Dr. Walters, GP, and Dr. Rubenstein, psychologist, in a report dated February 7, 2018, both opined that the applicant suffered from minor injuries.⁸ Particularly, Dr. Rubenstein did not find that the applicant met the criteria for any diagnosis according to the DSM-5. During that assessment, the applicant still reported psychological symptoms, feeling nervous at intersections and while driving back and forth from work. She also noted that she travelled to the assessment with public transportation.

20I prefer the evidence of the applicant over the evidence of the respondent. The applicant was seen by Dr. Atwal, Family GP, within a few days after the accident and would have been in a better position to determine whether the applicant was suffering from psychological impairments immediately after the accident. Dr. Atwal is the applicant’s family GP, so he would have more intimate knowledge regarding the applicant and whether she was suffering from a psychological impairment. Also, during Dr. Rubenstein’s assessment, the applicant still reported psychological symptoms relating to driver’s anxiety.

21I acknowledge that by the time the applicant saw the respondent’s psychological assessor, Dr. Rubenstein, he did not find any criteria for a psychological diagnosis. However, this examination was not conducted until 8 weeks after the applicant saw her family physician. It may have been that by the time the applicant saw Dr. Rubenstein the psychological condition resolved or improved. Also, Dr. Rubenstein did not have any of Dr. Atwal’s clinical records for his review prior to his assessment. Those records may have impacted Dr. Rubenstein’s opinion had he known that the applicant was diagnosed with a psychological impairment as a result of the accident within a few days of it happening.

22Nevertheless, the applicant was diagnosed with injuries that would remove her from the MIG. The fact that the applicant’s symptoms might have resolved that she no longer had a psychological impairment does not mean she did not have one months earlier. To give a parallel example, if an applicant broke a bone as a result of the accident, and later it heals, does not mean the applicant should be considered in the MIG. If at any point the applicant is diagnosed, by a doctor capable of making that specific diagnosis, of an injury that is not within the MIG, then it warrants removal. The applicant still has the onus to prove each treatment is reasonable and necessary. In this case, the applicant was suffering from psychological impairments so much so that it necessitated a referral for mental health therapy. I find that the applicant does not have minor injuries and should be removed from the MIG.

THE MENTAL HEALTH ASSESSMENT

23The applicant also submits that the mental health assessment proposed by Toronto Central Diagnostic is reasonable and necessary to manage and treat the applicant’s psychological injuries.

24The respondent argues that the applicant bears the onus to prove the treatment plan is reasonable and necessary. It submits that since Dr. Rubenstein did not diagnose the applicant with a psychological injury the mental health assessment is not necessary. The respondent argues that another reason why the treatment plan does not meet the reasonable and necessary test is that the applicant has not undergone the assessment, the report has not been completed and has not attended for treatment.

25I find that the fact that the applicant was diagnosed with two psychological impairments by the family doctor and referred for mental health therapy is sufficient to conclude the mental health assessment is reasonable and necessary to determine if treatment is necessary. There is no expectation that an applicant must incur significant costs to validate a need for treatment. The whole reason for a treatment plan is to petition the insurer for approval before incurring the cost. The treatment plan should contain reasons for why it meets the reasonable and necessary test.

26I find the applicant is entitled to a mental health assessment because it is reasonable and necessary for assessing her psychological impairments and addressing if treatment is necessary.

THE CHIROPRACTIC TREATMENT PLAN

27Since the applicant is out of the MIG, she can apply for medical and rehabilitation benefits above the minor injury limits.

28The applicant claims entitlement to the chiropractic treatment proposed by Dr. La Delfa on March 21, 2018. The goals of the treatment plan were to reduce pain, increase strength, and return the applicant to her activities of normal living.⁹ The respondent does not submit any specific arguments regarding this treatment plan other than the applicant should be considered in the MIG, she has not been diagnosed with chronic pain, and she had a good prognosis for improvement.

29I find the chiropractic treatment plan reasonable and necessary. Dr. Atwal’s clinical note on April 13, 2018, a few weeks after the requested treatment plan, the applicant, although getting better, was still complaining of pain because of the car accident. The note continues to say that she still attends therapy about once per week, is still on modified duties from work and is prescribed naproxen.¹⁰

30Since the applicant had also not returned to full duties at work, the treatment plan is also reasonable and necessary to decrease her work restrictions and improve her function. Since the applicant is no longer in the MIG and was still suffering from physical issues stemming from the accident, I find it reasonable that she continues treatment to improve upon her condition. Also, the cost of the treatment plan is reasonable and within statutory limits.

CONCLUSION

31In conclusion, the applicant’s car accident injuries are not minor.

32The applicant is entitled to a chiropractic treatment plan in the amount of $2,743.78 as proposed in a treatment plan dated March 21, 2018 by New Wave Health Centre.

33The applicant is entitled to $2,000.00 for a mental health assessment proposed in a treatment plan dated March 27, 2018 by Toronto Central Diagnostic.

34The applicant is entitled to interest if the treatment plans have been incurred and the payments are considered overdue.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10. (“Schedule”)
2. 2Superintendent’s Guideline No. 01/14 Minor Injury Guideline
3. 3Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”)
4. 4Superintendent’s Guideline No. 01/14 Minor Injury Guideline Section 4
5. 5Applicant’s Submissions Tab D December 3, 2017.
6. 6Applicant’s Reply Submissions page 120
7. 7Applicant’s submissions Tab D March 6, 2018 Page 42
8. 8Applicant’s submissions Tab H and Tab I reports of Dr. Walters and Dr. Rubenstein dated February 7, 2018
9. 9Respondent’s submissions Tab E
10. 10Applicant’s submissions, clinical notes and records of Dr. Atwal page 44