Zuhere v. Wawanesa Insurance, 2022 CanLII 78790

Citation: Zuhere v. Wawanesa Insurance, 2022 CanLII 78790

Licence Appeal Tribunal File Number: 20-002770/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.

Parties

Between:

Maitituoheti Zuhere

Applicant

and

Wawanesa Insurance

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Michael Yermus, Counsel

For the Respondent: Elizabeth Scott, Counsel

HEARD: By Way of Written Submission

BACKGROUND

1The applicant was involved in an automobile accident on July 29, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (the “Schedule”)¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The following issues are to be decided:

a. Are the applicant’s injuries predominantly minor as defined by the Schedule and subject to a treatment limit under the Minor Injury Guideline (“MIG”)?

b. Is the applicant entitled to $2,200.00 for a chronic pain assessment recommended by Scarborough Physiotherapy and Rehabilitation Centre in a treatment plan (“OCF-18”) dated March 13, 2018?

c. Is the applicant entitled to $12, 040.98 for a multidisciplinary chronic pain program recommended by Scarborough Physiotherapy and Rehabilitation Centre in an OCF-18 dated February 24, 2020?

d. Is the applicant entitled to an award for unreasonably withholding or delaying payments under section 10 of the Ontario Regulation 664?

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

Result

3The application is dismissed, and I find that:

a. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

b. The treatment plans in dispute are not payable;

c. The applicant is not entitled to interest; and

d. The applicant is not entitled to an award under Regulation 664.

ANALYSIS

Applicability of the Minor Injury Guideline

4The Minor Injury Guideline (“MIG”) establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in 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.”

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

6An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of a psychological impairment or chronic pain with a functional impairment. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

7It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.²

Did the applicant suffer physical injuries that warrant the removal from the MIG?

8The applicant relies on clinical notes and records (“CNRs”) of Dr. Michelle Homer, family physician, who assessed the applicant for the first time on August 26, 2014. Dr. Homer noted that the applicant was experiencing lower back pain, left knee pain, and left thumb pain. The applicant was diagnosed with musculoskeletal pain and was ordered x-rays which came back normal.³ The applicant returned to Dr. Homer on March 16, 2016, with ongoing pain in her lower back. The applicant was referred to physiotherapy.⁴

9On March 23, 2016, the applicant attended a walk-in clinic complaining of ongoing neck pain, upper and lower back pain, bilateral knee pain, bilateral hand pain, and with episodes of thumb pain. The applicant was seen by Dr. Shayamala Thinakaran, physician, who diagnosed the applicant with leg cramps, joint pain and swelling.⁵

10In response, the respondent relied on the insurer’s examination (“IE”) performance by its assessor Dr. Farooq Ismail, physiatrist, on May 17, 2018. During the assessment, the applicant complained of right knee pain and right thumb pain. Dr. Ismail concluded the applicant had soft tissue injuries to the right thumb and right knee. Dr. Ismail opined⁶ that the physical examination did not reveal any ongoing accident-related musculoskeletal or neurological impairment. Dr. Ismail concluded that the applicant’s impairments meet the definition of minor injury.⁷

11After considering the submissions of the parties, based on a balance of probabilities, I find that the applicant has not demonstrated that her accident-related injuries warrant a removal from the MIG.

12I am persuaded by the IE that the physical injuries identified are captured within the definition of minor injury. Further, the applicant did not see a physician for six weeks following the motor vehicle accident, and the x-ray did not demonstrate that she sustained anything other than a minor injury as a result of the accident.

Did the applicant suffer psychological impairments that justify the removal form the MIG?

13An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, on the basis that psychological impairments are not captured within the definition of minor injuries under s. 3(1) of the Schedule.

14The applicant submitted that as a result of the accident, she suffered from a psychological impairment that requires removal from the MIG. The respondent disagrees.

15On September 20, 2014, the applicant underwent an assessment by Dr. Kenneth Keeling, psychologist. The findings were included in the OCF-18 and concluded a provisional diagnosis of an adjustment disorder with anxiety and depression.⁸

16The applicant also relied on the evidence/assessment/clinical notes and records Dr. Nayyar Razvi, chronic pain specialist, who opined that the applicant’s symptoms are consistent with a diagnosis of major depressive disorder which features post-traumatic stress disorder.⁹

17The respondent relied on the IE performance by its assessor, Dr. Douglas Saunders, psychologist, of May 9, 2018. During the assessment, the applicant reported trouble falling asleep and described her “anxiety” as difficulty breathing along with thoughts of the accident. During the clinical interview, the applicant self-reported a 70% improvement since the motor vehicle accident.¹⁰ Dr. Saunders concluded that there was no impairment from a psychological perspective, finding that there is no evidence of a diagnosable condition requiring treatment.

18The respondent also argued that the psychological symptoms were self-reported by the applicant and there was no evidence or diagnosis supported by any medical professional qualified to diagnose such.

19After considering the evidence and submissions from the parties, based on a balance of probabilities I find that the applicant has not met her evidentiary onus to demonstrate that she suffers from a psychological impairment as a result of the accident.

20I disagree with the applicant’s position and find that the evidence does not support her allegation of a psychological injury. While a chronic pain specialist may be able to treat patients with chronic pain, I find that diagnosing such a psychological condition is beyond the scope of expertise of a chronic pain specialist.

21The OCF-18 psychological assessment of Dr. Keeling suggested a provisional diagnosis but offered no specific diagnosis based on the Diagnostic and Statistical Manual of Mental Disorders or DSM-5.¹¹ There must be specific evidence to establish an impairment, CNR’s or expert reports that would meet the onus of proof on a balance of probabilities; an OCF-18 is insufficient proof of a specific diagnosis.

22The applicant has the onus of establishing that she suffered a psychological impairment sufficient to remove her from the MIG treatment limits. In this regard, I cannot conclude that the applicant suffered an accident-related psychological impairment that would warrant the removal from the MIG.

Chronic Pain

23For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that her accident-related injuries had a detrimental impact on his functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

24The applicant submits that her injuries are chronic as her injuries are still not resolved. The applicant relies on the diagnosis of Dr. Razvi, who completed an in person chronic pain assessment¹² on May 4, 2018. At the assessment the applicant reported suffering from cervical headaches, cervical spine pain, lumbar spine pain, right knee pain, and right-hand pain as a result of the accident.

25Dr. Razvi diagnosed the applicant with cervicogenic headaches, zygapophyseal joint/myofascial pain of the cervical spine and lumbar spine, and ulnar collateral ligament strain of the right hand.¹³ Dr. Razvi’s medical opinion was that the applicant suffered an injury that has led to a chronic pain condition.

26The respondent relies on the May 17, 2018, IE by Dr. Ismail, who concluded that the applicant did not have any ongoing accident-related impairment. The respondent highlighted the inconsistencies of the applicant’s complaints to Dr. Razvi and Dr. Ismail. For example, the applicant complained to Dr. Razvi of cervical headaches, cervical spine pain, lumbar spine pain, right knee pain, and right-hand pain as a result of the accident. However, in comparison, the applicant complained only of right knee pain and right thumb pain to Dr. Ismail and therefore, the respondent argued, that less weight should be placed on Dr. Razvi’s evidence as a result of the inconsistencies.

27The respondent also highlighted the applicant’s lack of post-accident-related visits to Dr. Homer.

28After considering the submissions of the parties, based on a balance of probabilities, I find that the applicant has not shown that she suffers from chronic pain requiring removal from the MIG as a result of the accident.

29Despite her claim, the applicant failed to refer to the six criteria laid out in the American Medical Association Guides (“AMA Guides”).¹⁴ The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims.

30I find the applicant has not provided persuasive medical evidence demonstrating that her alleged chronic pain causes functional impairment necessitating removal from the MIG.

31Furthermore, I noted that both Dr. Ismail and Dr. Razvi refer to the applicant’s ability to complete activities of daily living with little to no limitations.

32Moreover, I do not find that the CNRs of Dr. Homer support the applicant’s position that she suffers from chronic pain requiring removal from the MIG. The CNR’s demonstrate that the applicant attended her family doctor on August 26, 2014, complaining of left knee, left thumb and low back pain.

33The applicant’s next visit to Dr. Homer was 18 months later, on March 16, 2016, where the applicant indicated that her knee pain resolved and only had low back pain with extension, with no medication prescribed. This was the last CNR in which the accident is mentioned. I do not find the sporadic CNR’s of Dr. Homer to be compelling evidence that the applicant suffers from chronic pain.

34For all the above reasons, the applicant has not met her onus in proving on a balance of probabilities that her accident impairments do not fit within the MIG.

35As the MIG’s $3,500.00 treatment limit is already exhausted, no additional analysis is required to determine if any of the treatment plans at issue is reasonable and necessary.

Interest and Award

36Given that there are no overdue payments of benefits, the applicant is not entitled to interest under s. 51 of the Schedule.

37As the applicant is not owed any outstanding benefits, the respondent cannot be said to have unreasonably withheld or delayed the payment of such benefits. Accordingly, the applicant is not entitled to an award under Regulation 664.

ORDER

38The application is dismissed, and I find that:

a. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

b. The treatment plans in dispute are not payable;

c. The applicant is not entitled to interest; and

d. The applicant is not entitled to an award under Regulation 664.

Released: August 31, 2022

__________________________

Monica Ciriello

Vice-Chair

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3Clinical Notes and Records of Dr. Homer, Tab 3 of the Applicant’s Brief
4. 4Clinical Notes and Records of Dr. Homer, Tab 3 of the Applicant’s Brief
5. 5Clinical Notes and Records of Dr. Thinakaran, Tab 4, of the Applicant’s Brief.
6. 6Insurer’s Examination Multidisciplinary Assessment, of Dr. Ismail, dated May 31, 2018
7. 7Insurer’s Examination Multidisciplinary Assessment, of Dr. Ismail, dated May 31, 2018.
8. 8OCF-18, Tab 7 of the Applicant’s Brief.
9. 9Chronic pain assessment, Tab 5 of the Applicant’s Brief.
10. 10IE assessment, Tab 1 of the Respondent’s Brief
11. 11OCF-18, Tab 7, of the Applicant’s Brief.
12. 12Chronic pain assessment, of Dr. Razvi, dated May 19, 2018.
13. 13Chronic pain assessment, of Dr. Razvi, dated May 19, 2018.
14. 14American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24.