Citation: Neves v. Wawanesa Mutual Insurance Company, 2022 ONLAT 20-003496/AABS
Licence Appeal Tribunal File Number: 20-003496/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:
Rebecca Neves
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Derek Grant
APPEARANCES:
For the Applicant: Ilona Agivaeva, Counsel
For the Respondent: Elizabeth Scott, Counsel
HEARD: By way of written submissions
OVERVIEW
1Rebecca Neves (“R.N.”) was involved 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 (the ''Schedule''). Wawanesa denied the benefits on the basis that it determined that R.N.’s accident-related impairments were predominantly minor injuries and therefore limited to treatment within the Minor Injury Guideline (the “MIG”). R.N. disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES
2The issues to be decided in the hearing are:
a. Are R.N.’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?
3If R.N.’s injuries are not determined to be predominantly minor, then I must decide:
a. Is R.N. entitled to services recommended by In Line Rehabilitation Centre Inc., in the following treatment plans (“OCF-18s”):
i. $1,920.53 for a psychological assessment, in an OCF-18 dated January 17, 2018, and denied on March 19, 2018?
ii. $5,212.04 for psychological services, in an OCF-18 dated February 26, 2018, and denied on March 16, 2018?
iii. $3,948.91 for chiropractic services, in an OCF-18 dated April 4, 2018, and denied on May 16, 2018?
b. Is R.N. entitled to interest on any overdue payment of benefits?
FINDING
4R.N. has not demonstrated that her accident-related impairments justify removal from the confines of the MIG. Since the MIG limits have been exhausted, she is not entitled to payment of the treatment plans or interest.
ANALYSIS
The Minor Injury Guideline
5Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are capped at $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.” In order to be removed from the MIG, an insured must 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 supported by compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG limits. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may be grounds for removal from the MIG. In all cases, the burden of proof lies with the applicant.
6To prove on a balance of probabilities that she should be removed from the MIG, she relies on a Disability Certificate (OCF-3) from chiropractor, Dr. Khandwalla, a pre-screen psychological report by psychologist, Dr. Kleiman, and the clinical notes and records (“CNRs”) of her treating physicians. R.N. submits that this medical documentation demonstrates that she suffered injuries as a result of the accident that prevent her from recovery under the MIG. In addition, R.N.’s position is that her diagnosed chronic pain and psychological impairments are not predominantly minor injuries.
7Wawanesa submits that R.N. does not suffer from a pre-existing condition, that her physical injuries are captured within the definition of “minor injuries, and there are non-accident factors which caused her psychological symptomatology. Its position is that there is no evidence that any accident-related impairments warrant removal from the MIG.
Does R.N. have a pre-existing injury?
8Although in her submissions, R.N. indicated that she suffers from hypothyroidism, Wawanesa submits, and I agree, that this does not amount to a pre-existing condition that would prevent her from reaching maximum recovery under the MIG.
9The CNRs of the treating practitioners note that her hypothyroidism is well-managed with medication. There is no indication in any medical records of compelling evidence that R.N.’s condition prevents her from achieving maximum medical recovery if she is kept within the MIG. As such, there is no justification to remove her from the MIG based on the presence of this pre-existing condition.
Did R.N. suffer physical injuries that would remove her from the MIG?
10I find that R.N. suffered predominantly minor injuries as a result of the accident. In the Ambulance Call Report, it is noted that R.N. had pain complaints in her wrist, right trapezius and sternum. She reported that she did not hit her head, and no head or neck pain was reported. She demonstrated full range of motion and diagnostic imaging reports came back as normal.
11She first attended her family physician, Dr. McDonough’s office on September 11, 2017, for non-accident related medical attention. A subsequent visit on September 26, 2017, it is noted that she had some back pain for a few months after a motor vehicle accident, which came and went. Dr. McDonough noted no spinal tenderness and normal range of motion in her lower extremities. Over the course of eight subsequent visits to Dr. McDonough, between October 31, 2017 and November 17, 2020, there is no mention of the accident, or accident related pain. There is a complaint of low back pain on a June 2018 visit, however, it is unclear if this was accident related.
12R.N. provided medical records from other family physicians, Dr. Shabash and Dr. Alasadi, however, the period of records up to January 26, 2021 contain no references to the accident.
13Wawanesa relies on the May 8, 2018 s. 44 orthopaedic report from Dr. Tountas in support of its determination that R.N. suffered predominantly minor injuries. When assessed by Dr. Tountas, R.N. reported her accident-related injuries as neck pain, upper-mid back, left wrist and right leg pain and bruising to her right ribs. At the time of the assessment, she reported feeling 80% better and that the pain in her left hand, right leg and right chest wall had completely resolved. Despite reporting occasional neck and lumbar pain, Dr. Tountas noted full movement and extension in her cervical and lumbar spine. Dr. Tountas opined that there was no evidence of musculoskeletal impairments, concluding that R.N. suffered minor injuries as a result of the accident.
14I am persuaded by the report of Dr. Tountas over the CNRs of the treating practitioners, because as an orthopaedic specialist, Dr. Tountas would have an advance level of expertise in determining the extent and impact of R.N.’s accident-related physical pain complaints. Further, R.N.’s self-reporting to Dr. Tountas indicates that she has made a significant recovery whether due to treatment received to date or the passing of time, and there is little indication that R.N. requires further facility-based physical treatment.
Did R.N. suffer psychological impairments that would remove her from the MIG?
15I find that R.N. did not suffer an accident-related psychological impairment that would remove her from the MIG.
16On the evidence, the first documented psychological complaint is found in the CNRs from Dr. Alasadi, on February 21, 2020, which is over two and a half years post-accident. I note that there is no reference to the accident in the CNRs. Further review of the medical documents notes various factors which more than likely contributed to R.N.’s psychological well-being, i.e. – the murder of a close friend, the end of a relationship with her boyfriend, an identity crisis, and COVID-related restrictions. The accident is not referred to in the records as having any connection to her psychological symptomatology. I find that R.N. has failed to link her psychological impairment to the accident.
17R.N. relies on the report of Ms. Prudivski; however, the pre-screen report notes that the information came from R.N.’s self-reports. There is no evidence that Ms. Prudovski was provided with the family physician records, which contain little to no reference of impairments as a result of the accident. Of note, R.N. reported two panic attacks since the accident, with the first again, being as a result of the loss of her friend. Ms. Prudovski notes driving anxiety, however, R.N. reported that she continues to drive and denied any passenger anxiety. Ms. Prudovski also notes that R.N. continues to work full time post-accident and is able to maintain her duties. I note that the CNRs also do not make any note of driving anxiety.
Does R.N. suffer from chronic pain as a result of the accident?
18The AMA Guides identify six criteria as “major” characteristics of chronic pain syndrome, with three required to establish chronic pain syndrome: the use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances; excessive dependence on health care providers, spouse, or family; secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain; withdrawal from social milieu, including work, recreation, or other social contacts; a failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and the development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression, or nonorganic illness behaviors.
19The 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. However, here, I am not directed to a diagnosis of chronic pain or chronic pain syndrome and R.N. did not engage with any of the criteria under the AMA Guides.
20As noted above, R.N. returned to full-time work post-accident, continues to drive, and is able to maintain her duties. There is no evidence that she is not able to engage in her activities of daily living, or that she suffers any other functional impairment as a result of the accident.
21Overall, I do not find the sparse CNRs of R.N.s family doctors (where the accident is mentioned) convincing that she suffers from chronic pain as a result of the accident. Contrary to her arguments, she has never been diagnosed with chronic pain by any of her family doctors.
22Wawanesa submits and I agree that R.N. has not established that her level of overall improvement and well-being post-accident, is indicative of suffering non-minor injuries or impairments. Accordingly, R.N. has not proven on a balance of probabilities that her accident-related injuries warrant removal from and treatment beyond the MIG due to chronic pain.
Are the OCF-18s reasonable and necessary?
23I have determined that R.N. failed to demonstrate that removal from the MIG is justified. Therefore, an analysis of whether the OCF-18s are reasonable and necessary is not required, as the MIG limits have been exhausted.
INTEREST
24As no benefits are payable and the MIG limit has been exhausted, it follows that interest is not payable.
ORDER
25R.N.’s application is dismissed.
Released: February 3, 2022
Derek Grant, Adjudicator