Ishaq v. Wawanesa Mutual Insurance Company, 2022 CanLII 75072

Citation: Ishaq v. Wawanesa Mutual Insurance Company, 2022 ONLAT 20-009146/AABS

Licence Appeal Tribunal File Number: 20-009146/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:

Tania Ishaq

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Claudette Leslie

APPEARANCES:

For the Applicant:

Shohreh Rakhshannavaz, counsel for the Applicant

For the Respondent:

Erica Lewin, counsel for Wawanesa Mutual Insurance Company

Heard by way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on October 26, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016).

2The applicant was denied certain benefits by the respondent insurer, Wawanesa Mutual Insurance Company (“Wawanesa”). The applicant disagreed with the denial and submitted an application for dispute resolution to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The parties were unable to resolve their dispute at a case conference held on January 12, 2021, and consequently the matter proceeded to a written hearing.

ISSUES

3The following are the issues before me:

1. Are the applicant’s injuries predominantly minor as defined under s. 3 of the Schedule and therefore subject to treatment within the $3,500 limit under the Minor Injury Guideline (“MIG”)?
2. Is the applicant entitled to an income replacement benefit (“IRB”) of $294.73 per week from September 22, 2019 until September 21, 2021?
3. Is the applicant entitled to $3,456 for physiotherapy recommended by Health Pro Wellness in a treatment plan (OCF-18) denied on October 28, 2019?
4. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4Having considered all of the relevant evidence provided, I find that:

(i) the applicant’s injuries fall outside the MIG;

(ii) the applicant is not entitled to the income replacement benefits claimed;

(iii) the applicant is entitled to $3,456 for physiotherapy services recommended by Health Pro Wellness in a treatment plan, and interest in accordance with s. 51 of the Schedule; and

(iv) the applicant is not entitled to an award under Regulation 664.

BACKGROUND

5The applicant was the front seat passenger in a vehicle on October 26, 2018 when another vehicle collided with the vehicle, in a head-on fashion. The accident was reported at the collision centre. No one involved in the accident required attendance at a hospital; and while the police was called, they did not attend. Damage to the vehicle was such that the vehicle was deemed to be a total loss.

6The applicant reported that, since the accident, she has been having widespread body pain, including in both shoulders, low back, neck and legs, headaches and fatigue. She has been undergoing treatment and has been under the care of a pain clinic. Recommended treatment to alleviate pain includes physiotherapy, massage, pharmacotherapy and injection.

7The applicant was working in retail as a sales associate at Winners at the time of the accident. The record shows that her employment started on September 11, 2017. She indicated that as a result of injuries sustained in the accident, she was unable to continue working and as a result, she terminated her employment on September 21, 2019. The applicant was 39 years old at the time of the accident.

THE LAW, EVIDENCE AND ANALYSIS

The Minor Injury Guideline (“MIG”)

8The MIG establishes a framework available to insured persons who sustain minor injuries as a result of an accident. A “minor injury” is defined under s. 3(1) of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” For clarity, the terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in the Schedule.

9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 for individuals who sustain minor injuries. An insured person may also be removed from the MIG treatment limit if, as per section 18(2), they have a pre-existing injury or condition documented by a health practitioner before the accident, combined with compelling medical evidence indicating that the condition will prevent the individual from achieving maximal medical recovery from the minor injuries.

10The MIG definition does not include chronic pain, nor does it mention impairments that are not considered minor. The MIG treatment limit of $3,500 is reasonably understood to address minor injuries that will result in the functional restoration of an individual, over a short period of time. Chronic pain however, as defined in the Tribunal’s reconsideration decision of T.S. v. Aviva General Insurance Canada, (2018 at para. 23), is understood to be “ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual’s well being. A simpler definition for chronic or persistent pain is pain that continues when it should not.” Tribunal decisions have also held that removal from the MIG as a result of chronic pain must be accompanied by functional impairment or disability. In all cases, the burden rests with the applicant to prove, on a balance of probabilities, entitlement to funds exceeding the MIG treatment limit (Scarlett v. Belair, 2015 ONSC 3635 para.24(Div. Ct.).

Did the applicant sustain injuries/chronic pain that would remove her from the MIG treatment limit?

11I find the applicant’s evidence provides a compelling indication that, on a balance of probabilities, she sustained persistent pain, chronic in nature, for an extended period, leading to physical impairments necessitating treatment that exceeds the $3,500 MIG limit.

The parties’ positions

12The applicant submits that she sustained accident related, ongoing pain injuries and physical limitations that are severe, and as per the impressions noted in a report of November 1, 2019 from the Vaughan Pain Clinic, they have evolved into fibromyalgia/chronic pain syndrome. She contends that she continued to experience pain over two years post accident, well beyond the short-term recovery period contemplated by the MIG. As such, she submits that her injuries do not qualify as being predominantly minor; they require ongoing physical treatment and assessment, to address resulting limitations, that exceeds the MIG limit.

13The respondent takes the opposing view, submitting that the applicant’s medical documentation does not support the applicant’s claims of extensive accident- related pain complaints and physical limitations. It further notes that although the applicant regularly attended a clinic in the months following the accident, her attendances were not accident related; medical reporting appear to be subjective reporting by the applicant; and the purported chronic pain diagnosis is outside of a chiropractor’s scope. The respondent also argues that I should draw a negative inference from the applicant’s failure to disclose certain ailments such as the diagnosis of plantar fasciitis and peripheral nerve sheath tumor of the left lower extremity, as consideration of such may be relevant to causation of the applicant’s complaints.

The evidence

14The applicant does not allege that she had a pre-existing condition that was exacerbated by the accident. All of the evidence she provides relate to the period following the accident, with a final March 23, 2021 submission. The relevant evidence indicates more than 10 post-accident, medical consultations, primarily related to the pain complaints, including ongoing treatment at the above-mentioned pain clinic.

15On October 31, 2018, she visited her family physician, Dr. Beshoy Awad at MCI Woodbridge, due to a sore throat. At that time, she mentioned that she was involved in the accident the Friday prior to the visit. She went back to the family physician on November 23, 2018, due to complaints including, “back, neck, side of the back, L shoulder”. The doctor noted there was tenderness in a part of her left side and that she had difficulty with abduction to her left arm. The applicant requested to have an X-ray done. The family doctor referred her to the Vaughan Pain Clinic for treatment. At over a year post-accident, a November 1, 2019, report from the clinic indicates that she had been complaining, for some time, of pain due to the accident. She reported medium to high, sharp pain in her neck, shoulders, lower back and headaches; pain radiating down the right leg. She also reported that the pain was aggravated by prolonged walking and standing.

16She was examined by Dr. Caroline You at the clinic, whose physical examination of the applicant revealed, among other things: “tenderness of the muscles of the neck, shoulders, upper and lower back, joint tenderness…active range of motion of neck and lower back moderately restricted in all directions due to pain.” Under the heading of “Impression” the doctor notes: “1) fibromyalgia, 2) chronic pain syndrome.” She recommended, “pharmacotherapy, ancillary treatment modalities including ongoing physical modalities.”

17A January 11, 2019 ultrasound of her left shoulder showed, “biceps tenosynovitis and possibly supraspinatus tenosynovitis”; and a cervical spine x-ray demonstrated mild degenerative disc disease with anterior osteophyte lipping at C5-C5 level. On April 19, 2019, the indication is that she visited MCI Woodbridge because of unrelated symptoms of widespread body pain, chills, runny nose and nasal congestion.

18In a disability certificate of Health Pro Wellness, dated June 25, 2019, treating chiropractor Tarulli indicates the following: “[the applicant] reported difficulty with ADLs and recreational tasks requiring repetitive bending [and] lifting from the floor, lifting overhead and prolonged positions.” The chiropractor indicates a recovery period of 9-12 weeks in duration, and that the applicant could return to modified work hours and duties, provided she took breaks from repetitive bending, lifting from the floor and standing. The applicant told the chiropractor that her symptoms first appeared on October 26, 2018, the date of the accident. The doctor recommended psychological and functional abilities evaluation assessments. His diagnosis was:

radiculopathy, acute pain, sprain and strain of cervical spine, sprain and strain of thoracic spine, sprain and strain of lumbar spine, sprain and strain of sacroiliac joint, sprain and strain of shoulder joint, sprain and strain of shoulder joint, rotator cuff capsule, headache, malaise and fatigue, stress, not elsewhere classified, Whiplash associate disorder [WAD 2] with complaint of neck pain with musculoskeletal signs.

19In a treatment plan dated October 3, 2019, another treating chiropractor, Aliya Salayeva of Health Pro Wellness concluded that the applicant's impairments “affect her ability to carry out her tasks of employment, as patient has difficulties performing physical activities that include lifting, carrying, kneeling or pulling due to injuries; having obstacles with daily home maintenance chores especially bending and reaching, along with some discomfort in prolonged positions.” The chiropractor indicates that the plan proposed will among other things, increase the applicant’s strength and range of motion; and at the same time she could return to modified work activities. Ongoing improvement is noted, and that further progress would be evaluated on the basis of both objective and subjective findings.

20The applicant secured a second disability certificate from chiropractor, Dr. Rob Tarulli, dated September 1, 2020, at close to two years post accident. His observations, diagnosis and recommendations are similar to those contained in the first certificate, including an estimated 9–12-week recovery period.

21The evidence also indicates that the applicant had a number of telephone consultations with her family doctor at MCI Woodbridge. On February 20, 2020, for a fibromyalgia follow up, she was complaining of pain in her knees and back; she indicated that she had to quit working at Winners due to ongoing/too much pain and that she was trying to find a new job and wanted to secure a letter to that effect. She reported that she had pain in almost every joint, and “was getting injections”. On June 10, 2020, she called regarding a refill of her Lyrica 25mg prescription. She indicated she had stopped taking the medication on a trial basis for a few months, but the pain returned causing her sleeplessness. On September 2, 2020, she called again about ongoing pain in various parts of her body and she requested another prescription refill for Lyrica. She mentioned that Lyrica helped to relieve her pain and a dosage increase was contemplated at that time. She also reported that at times she had to take Tylenol 2 to help her sleep.

22A September 25, 2020 note indicates that she attended the pain clinic to explore options for pain management, reportedly due to her experiencing worsened pain, although she was undergoing treatment and utilizing prescription pain medication. She was examined by certified pain physician, Dr. Pezhman Mehrablan. For clarity, the doctor notes that his examination did not involve making a correlation between the accident and the applicant’s symptoms.

23On February 3, 2021, the applicant had a 10-minute, follow-up telephone consultation with her family doctor at MCI Woodbridge, about ongoing pain since the accident in her shoulder, low back, neck, legs, headache and fatigue. She indicated that she believed the accident had caused her fibromyalgia to flare up and manifest; and that she found the pain clinic treatments helpful.

24On March 23, 2021, chiropractor Tarulli completed a third disability certificate. He confirmed his earlier diagnosis and recommended recovery period of the same duration as previously. In his estimation, the applicant appeared to have developed sleep apnea and chronic pain.

Response to the applicant’s evidence

25The respondent argues that the applicant’s medical consultations were primarily based on symptoms unrelated to the accident; and that her claims are misleading. The respondent did not submit any independent medical evidence for consideration in this matter. However, it contends that the applicant’s evidence should be discounted for a number of reasons. My review of the relevant evidence provided indicates as follows.

26Contrary to the respondent’s claim that the applicant’s medical consultations were primarily non-accident related, the evidence shows only two occasions, October 31, 2018 and April 19, 2019, when the applicant consulted with her family physician regarding what appeared to be non-accident-related issues (cold/flu-like symptoms). In the first instance, she did mention the accident which had occurred a week prior. She provides no explanation as to why the accident was mentioned at that time, when her consultation was for another reason. The only inference I can make is that she was likely experiencing some post-accident issues. On her next visit however, on November 23, 2018 approximately a month post accident, she reported back, neck, and left shoulder pain and requested X-ray imaging. She was prescribed pain medication, following a physical examination revealing “tenderness to left sided scm muscle, difficulty with abduction of left arm; Dx: neck strain, shoulder strain…”

27The respondent observes that the applicant sought medical attention regularly in the months following the accident (10 times between January 23, 2019 and May 28, 2019). Yet, according to the respondent, she did not report any bodily complaints or physical impairments related to the subject accident and there were no Clinical Notes and Records (“CNRs”) from the clinic for a five-month period up to October 30, 2019. The evidence shows otherwise. Other than the two aforementioned occasions, the evidence indicates that her visits to the doctor were all related to pain in specific areas of her body, which appear to have started post-accident; whether the visits involved diagnostic imaging or following up, exploring treatment or refilling pain medication.

28The respondent considers the resulting reports from the applicant’s consultations with Dr. You and Dr. Mehrablan, conducted approximately a year post-accident, to be mostly subjectively based. In my view, the applicant’s subjective evidence must be considered. She was referred to the clinic by her family physician because of reportedly worsening pain throughout her body including her shoulders and neck. Her reporting including, “lower back is worse…shooting pain…10/10- radiated down her legs…worse with activity…relieved with pain killer…”, cannot, in my view, be ignored. The applicant also mentioned the effects of having to stand for long periods. More to the point, I disagree with the respondent’s characterization of the reports. These reports were not solely based on the applicant’s self-reporting but also on the doctors’ own examinations, including physical examinations.

29Further, the respondent points to Dr. Mehrablan’s notation that he did not make any correlation between the accident and the applicant’s pain complaints. This does not negate his findings, given that the referral made by her family doctor was to explore options for pain management, not causation. However, his resulting recommendations bear consideration which includes joint steroid injection and physiotherapy. I find this lends further credence to the applicant’s consistent, post-accident pain complaints.

30The respondent also submits that chiropractor Tarulli’s reference to chronic pain in the March 23, 2021 disability certificate should be given no weight as it is outside of the chiropractor’s area of expertise. It is unclear to me whether the impressions noted by the chiropractor constitute a diagnosis, or they are merely his observations considering the applicant’s medical history/pattern and the fact that she was there seeking a third disability certificate from him. However, my most significant takeaway is the fact that, at that point, more than two years after the accident, the applicant was still seeking a disability certificate or exploring options for further treatment. In my view, this may have led to the chiropractor’s “impressions” regarding chronic pain.

31The respondent directs me to draw an adverse inference from the applicant’s failure to disclose to Drs. You and Tansey, the latter the respondent indicates she saw in another regard, her diagnosis of plantar fasciitis and a peripheral nerve sheath tumor of the left lower extremity, as it could be relevant to the causation of her aggravated pain complaints with walking and standing. This is in reference to February 26, 2020 and June 12, 2020 ultrasound/MRI consultations. Up to that point, more than a year after the accident occurred, the applicant had been regularly complaining of and seeking pain relief in various parts of her body, which did not include her left ankle/foot. Without any medical indication of the nature of and when these conditions developed and whether they were medically resolved, I am not led to believe the lack of disclosure significantly impacted the doctors’ overall observations/diagnoses. I decline to draw any adverse inference.

32Similarly, it is the respondent’s position that the applicant continued working up to 11 months post accident, indicating she was not functionally impaired. The medical evidence, including the three disability certificates she obtained, indicates her job functions were part of her medical consultation discussions. There is no indication she was unable to work but rather that she was able to work under modified circumstances. The fact that she was unable to work without modifications and because of accident-related pain indicates to me that her functionality was affected.

33The respondent further argues that the applicant’s claim of a chronic pain condition should be assessed against the American Medical Association (“AMA”) Guides’ six criteria described as:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

ii. Excessive dependence on health care providers, spouse, or family;

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

iv. Withdrawal from social milieu, including work, recreation, or other social contacts;

v. 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

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

34The AMA Guides state that at least three of the six criteria must be met for a chronic pain diagnosis. The respondent submits that the applicant does not meet the criteria for such a diagnosis. As noted above, the Schedule does not define what constitutes a chronic pain condition, nor does it incorporate the AMA Guides’ criteria. Therefore, while I am not bound by the AMA Guides’ criteria, I find them persuasive guiding factors in determining whether pain is chronic or not. Contrary to the respondent’s submission, in this case the evidence indicates that:

(i) the applicant has used prescription drugs/injections for pain extensively;

(ii) she has frequently sought the services of health care providers;

(iii) she has taken steps to avoid physical activities that cause pain, such as those involved in her work activities;

(iv) she has not been physically restored to pre-accident condition over a period of years post accident; and

(v) there is indication that she has developed sleep issues, to some extent.

Findings of post-accident medical activity history

35Given that the vehicle was deemed to be irreparable in this case leads me to believe this head-on type collision was not slight in nature. As such, it likely created a traumatizing effect on individuals involved. In this case, the applicant produced post-accident medical activity history proving that, on a balance of probabilities, her injuries fall outside the minor injury framework. The evidence indicates:

(a) Her pain complaints began shortly after the accident, specifically in her lower back, neck, and shoulder areas to such an extent that she requested an X-ray of her left shoulder within a month of the accident.

(b) The existence of pain is well recorded in the post accident documentation. Almost all of the approximately 15 times she consulted with her family doctor/pain clinic practitioners post accident were due to pain complaints, the worsening of same, or she was seeking treatment/relief, diagnostic investigation of pain, or to refill prescribed pain medication.

(c) The medical documentation describes the presence of persistent, ongoing pain symptoms lasting well beyond the approximate 12-week recovery period from minor injuries to over two years. This likely led to some of her treating practitioners’ conclusion that she was demonstrating symptoms that meet the definition of chronic pain.

(d) It is unlikely that the applicant would have been able to secure a third disability certificate on March 23, 2021, more than two years post-accident, if her subsequent pain complaints were not credible and her medical examinations did not corroborate her self-reports.

(e) All considered, the only reasonable conclusion I can draw is that the applicant developed chronic pain since the accident, which had adversely affected her well-being. The most prominent evidence of the adverse effect is the fact that she was unable to meet the demands of her work activities (standing, bending, reaching, etc.), in the same way she did before the accident. While Dr. Tarulli, in his disability certificates, indicates that she was able to return to work on modified terms, and that she worked for 11 months after the accident, it is unclear to me whether her employer had implemented the chiropractor’s recommendations for modifications.

36For these reasons, I find that the applicant sustained chronic pain of a physical nature, in keeping with the definition of this condition, that leads me to conclude that her injuries fall outside of the MIG. I will therefore address the disputed treatment plan, but first I will address the issue of income replacement benefits.

Issue [3] 2.: Is the applicant entitled to income replacement benefits of $294.73 weekly from September 22, 2019 to September 21, 2021?

37Section 5(1) of the Schedule requires an insurer to pay an injured, insured individual an income replacement benefit if, as a result of the accident, the insured person suffers a substantial inability to perform the essential tasks of their employment. As per s.6(2), after the first 104 weeks post-accident, to qualify for income replacement benefits the test is more stringent. It is whether the individual suffers a complete inability to engage in any employment for which they are reasonably suited by education, training and experience. In other words, because of their accident-related injuries, they are unable to work at any job they are able to do within the scope of their education, training and experience. As indicated previously, the applicant bears the burden of proving, on a balance of probabilities, that she is entitled to the benefit.

38The applicant seeks IRBs from September 22, 2019, one day after the last day she worked, to September 21, 2021. This represents a period including pre- and post- 104 weeks after the accident. There is no dispute that she was a sales associate at Winners at the time of the accident where, according to the employment form submitted, she worked from September 11, 2017 to September 21, 2019. According to CNR notations of MCI Woodbridge dated February 8, 2020, the applicant claimed she had quit her job as a result of accident-related pain. However, the employment form indicates that she was terminated.

39I have already determined above that the applicant sustained physical, accident-related injuries; specifically, ongoing, pain that meets the definition of chronic pain, requiring treatment beyond the treatment limit for minor injuries. Notwithstanding, the relevant evidence submitted does not, in my view, establish that she was unable to perform the essential tasks of her employment as a retail sales associate.

The essential tasks of the applicant’s employment

40The submitted employment form does not provide a description of her job responsibilities, neither does the applicant indicate what the essential tasks and their demands are. I therefore rely on other documentary evidence. In the June 25, 2019 disability certificate, and the subsequent ones, Dr. Tarulli provides his recommendations regarding tasks involving repetitive bending, lifting from floor and standing. Similarly, Aliya Salayeva’s treatment plan of October 3, 2019 describes the activities towards which the proposed treatment plan is geared, as including: “physical activities that include lifting, carrying, kneeling or pulling” and as reported by the applicant, “especially bending and reaching along with some discomfort in prolonged positions.” Undoubtedly, as a sales associate, to a large extent, her role involved these types of physical maneuverings in a day’s work. To what extent and whether there was follow up on the doctor’s recommendations for modifications, is unexplained. I must now turn my mind to the question of whether, due to the accident, she was substantially unable to perform these essential tasks, causing her to quit her job.

Whether she is substantially unable to perform the essential tasks of her employment as a part-time sales associate at Winners

41Dr. Tarulli in his June 25, 2019 disability certificate says the applicant can return to work on modified duties from pain provoking tasks including those listed above, “provided breaks are granted from periods of repetitive bending, lifting from the floor and standing.” Dr. Tarulli’s recommendations in this regard are largely the same in the subsequent certificates he completed on September 1, 2020 and March 23, 2021, despite his impression that the applicant appeared to be experiencing chronic pain symptoms. I have also reviewed the applicant’s employment form which not only indicates the duration of her employment from September 11, 2017 to September 21, 2019, but also her earnings for each year from October 2017 to 2018 and 2019, as well her absences. It indicates that she was absent eight days in December 2017 and from January 1 to 27, 2018. There are no absences noted after the accident on October 26, 2018.

42Both parties appear to be in agreement that the applicant continued to work for a period of 11 months after the accident and as indicated above, there were no absences following the accident. Considering both subjective evidence/demonstrations and objective medical evidence provided, I agree with the respondent that, on a balance of probabilities, the applicant was able to perform the essential tasks of her employment as demonstrated by the fact that she worked 11 consecutive months following the accident. Furthermore, the record indicates that the applicant was terminated, and I am not led to believe that she sustained accident-related issues that would have caused her to quit her job, despite her indication to this effect. For these reasons, I find that the applicant is not entitled to income replacement benefits from the time her employment ended or going forward.

Issue [3] 3.: Is the treatment plan in the amount of $3,456 for physiotherapy reasonable and necessary?

43Pursuant to ss. 14 and 15 of the Schedule the respondent is liable to pay an insured person’s medical and rehabilitation expenses if the individual sustained accident-related injuries, and the expenses are reasonable and necessary in that regard. In this case, the issue is whether the proposed treatment plan is reasonable and necessary. While the Schedule does not define the terms “reasonable and necessary”, a realistic interpretation must include consideration of whether the expenses are related to impairments caused by the accident, the goals of the treatment plan, and whether such goals are likely to be achieved by said treatment. I find the proposed treatment plan is reasonable and necessary on all fronts.

44The disputed treatment plan was recommended by Health Pro Wellness. It was submitted to the insurer on October 15, 2019, approximately a year post accident, and was denied by the respondent on October 28, 2019. The applicant states that the goals of the treatment plan are geared towards pain relief, and as such, the proposed treatment is reasonable and necessary. The respondent submits that there is no compelling, objective evidence to substantiate her claim that the treatment plan is reasonable and necessary.

45As indicated above, both subjective and objective medical findings, the latter being based on examinations, confirm that after the accident, the applicant demonstrated ongoing, debilitating pain symptoms that affected her physical activities. The treatment plan is dated October 3, 2019 and is based on Aliya Salayeva’s evaluation/examination of the applicant. She describes the applicant’s accident-related limitations as: “Patient has difficulties performing physical activities that include lifting, carrying, kneeling or pulling due to injuries. Patient states having obstacles with daily home maintenance chores, especially bending and reaching along with some discomfort in prolonged positions.”

46The doctor indicates the proposed treatment is intended to: increase strength and range of motion; and return the applicant to the functional goals of normal living activities, modified work activities and pre-accident work activities. To this end she proposes 20 sessions each of manipulations of multiple regions, functional exercises and modalities. Even with treatment, the doctor indicates the severity of her injuries and the demonstrated symptoms would likely impact the duration of her recovery. Dr. Salayeva further observes that there have been mild, ongoing improvements subsequent to previous treatment plan(s); and that further progress would be evaluated on the basis of both objective and subjective findings.

47I also reviewed the first treatment plan submitted by the applicant, which the respondent had approved. The plan dated September 17, 2019 was proposed by Dr. Tarulli. The symptoms and treatment described in this earlier plan are very similar to those of the denied claim before me. For example, Dr. Tarulli notes that she “has difficulties performing physical activities that include lifting from the floor and overhead, repetitive bending and reaching, along with some discomfort in prolonged positions. Patient has significant disturbance with regular sleeping pattern…” He recommended treatment of five (compared to Dr. Salayeva’s 20) sessions each including manipulations, exercise and therapy of multiple body sites.

48It bears mentioning also that four months after the October 2019 medical consultation, the family doctor’s/nurse’s CNRs of February 2020 indicate that the applicant needed a refill of pain relief medication. Also striking is the fact that, at this juncture more than two years after the accident, the applicant indicated she was experiencing pain including in her joint, her knees, ankles and back, although she was receiving pain injections at the clinic.

49Clearly the evidence establishes that the applicant was consistent in her ongoing pain complaints in various areas of her body. Nothing in her evidence would lead me to believe the description of her difficulties after the accident was contrived. Previously approved physiotherapy treatment had resulted in mild on-going improvements; and the indication is that further on-going treatment of this type will likely build on and enhance the improvements already realized, leading to restoration. I find this treatment plan is therefore reasonable and necessary.

Issue [3] 4. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed payment to the applicant?

50The applicant requested a special award pursuant to section 10 of Ontario Regulation 664 (“Reg 664”). Section 10 of Reg 664 states that the Licence Appeal Tribunal may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award, together with interest on all amounts then owing to the insured if an insurer has unreasonably withheld or delayed payments. As indicated above, I find that the income replacement benefit is not payable. Therefore, if I find that the respondent unreasonably withheld or delayed payment of the remaining medical benefit, the Tribunal has the discretion to order a special award. The Schedule does not define the words “unreasonable/unreasonably”. However, there is well-established caselaw at the Tribunal including as highlighted by the party/parties in their submissions, that describe the test for an award, including exercising common sense.

51The essence of the applicant’s allegation is that Wawanesa acted unreasonably by failing to approve and pay the treatment plan in question, without any medical opinion that contradicts the credible medical evidence she provided. As a result, the treatment to which she was entitled was denied or delayed. The respondent asserts that at all times it adjusted the file in good faith based on the documentation provided.

52Although I found the treatment plan reasonable and necessary, I do not find compelling argument/evidence indicating that the respondent was unreasonable in its denial of the medical benefit or that it unreasonably withheld/delayed it. Firstly, according to the applicant, the treatment plan in question was submitted on October 15, 2019 (dated October 3, 2019). It was denied by Wawanesa on October 28, 2019. In my view, this timeframe does not represent a delayed response. Indeed, the denial is within ten business days as allowed by s. 38(8) of the Schedule. Secondly, in explaining its denial, the insurer indicates that it had reviewed the medical documentation and other information on file, compared the information to the definition of MIG, and concluded that the MIG applied, that she required no further treatment, and there was no need for it to conduct an insurer’s assessment. The fact that the respondent disagreed with the applicant’s assertion and/or assessment of the medical documents does not represent unreasonable conduct.

Issue [5] 5.: Is the applicant entitled to interest on any overdue payment of the benefit?

53Pursuant to section 51 of the Schedule, the applicant is entitled to interest on any overdue payment of the claim for physiotherapy treatment.

CONCLUSION/ORDER

54While both parties submitted decisions by this Tribunal/other administrative tribunals for my consideration, I am not bound by another member’s decision. At the same time, while I recognize that the issues determined in these decisions may be similar, the circumstances, including the mechanics of the accident and the evidence provided, vary in each case. For this reason, in determining the merits of this matter, I have focused my attention primarily on the particulars, facts and the relevant evidence provided as they relate to this matter.

55For the reasons given above, I order that:

i. The applicant’s injuries fall outside of the MIG.

ii. The applicant’s claim for income replacement benefits in the amount of $294.73 per week from September 22, 2019 until September 21, 2021 is dismissed.

iii. The applicant is entitled to $3,456 for physiotherapy services recommended by Health Pro Wellness in a treatment plan (OCF-18) denied on October 28, 2019; and in accordance with s. 51 of the Schedule, interest on any overdue payment of the benefit.

iv. The applicant’s claim for an award is dismissed.