Singh v. Wawanesa Mutual Insurance Company, 2022 CanLII 84677

Citation: Singh v. Wawanesa Mutual Insurance Company, 2022 ONLAT 20-003519/AABS

Licence Appeal Tribunal File Number: 20-003519/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:

Jaskaran Singh

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Olga Kanevsky, Counsel Julia Logoutova, Paralegal

For the Respondent: Serena Gohal, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on April 30, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). 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 issues to be decided are:

i. 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 the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $2,160.54 for physiotherapy treatment recommended by Physiomed Westwood in a treatment plan (“OCF-18”) dated August 19, 2019?

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

RESULT

3The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 MIG treatment limit. Given that this limit has already been exhausted, a determination of whether the OCF-18 is reasonable or necessary is not required. Given there are no benefits payable, no interest is payable, pursuant to s. 51 of the Schedule.

ANALYSIS

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.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

5Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond this 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 non-minor injury, e.g., a psychological impairment, chronic pain with a functional impairment.

6It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.¹

7The applicant relies on the Disability Certificate (“OCF-3”) dated May 30, 2016, and completed by Dr. Duilio Bertolo, Chiropractor. The duration of the disability was listed as 9-12 weeks.² Similarly, The OCF-18, dated August 19, 2019 by Sonu Thomas, Physiotherapist, lists lower back pain, sprain and strain of the sacroiliac joint, myalgia, whiplash associated disorder (“WAD-2”) with complaint of neck pain with musculoskeletal signs, and tension-type headache as the impairments at issue.³ The goals listed in the treatment plan are pain reduction, increase in strength, and a return to the activities of daily living.⁴

8Neither party has submitted expert medical reports to bolster their submissions. The applicant relies solely on the clinical notes and records of her physicians and treatment providers.

9The clinical notes and records from family physician, Dr. Francis Woo detail 12 visits between May 2016 and June 2018. His handwritten notes are largely illegible, but I could discern three visits in May 2016 and September 2017 that cited lower back or neck pain related to the motor vehicle accident.⁵

10The applicant visited Vaughan Wellness Clinic for chiropractic treatment a total of 18 times between 2016 and 2017. The only reference to the accident in these records is during the initial assessment on May 13, 2016, approximately two-weeks post-accident.⁶ Otherwise, there are no treatment records from any chiropractic or physiotherapy provider for the entire year of 2018. There is no explanation for this gap in treatment in the applicant’s submissions.

11The applicant also relies on the clinical notes and records of another family physician, Dr. Sivajanani Sivarajah, between June 2018 and January 2021. During this period, the applicant reported pain related to the accident on four occasions, i.e., in June 2018, February and September 2020, and in January 2021. However, on July 16, 2018, Dr. Sivarajah noted the applicant had a “longstanding history of lower back pain”.⁷ She further indicated this “back pain may be weight-related”.⁸ Otherwise, the applicant did not report any accident-related pain to Dr. Sivarajah in 2019.

12The applicant did visit Physiomed for physiotherapy treatment six times between August 2019 and February 2020. During her initial assessment at Physiomed on August 19, 2019, she spoke about the accident, and she stated that her lower back pain symptoms lingered and were worse at the end of the day when she does a lot of physical labour at work.⁹ However, the Physiotherapist, S. Thomas, noted that she was overweight, and listed impairments as WAD 2, LS sprain, SI sprain.¹⁰

13X-rays of the applicant’s lumbar spine on March 14, 2018 indicate a normal study, as the disc spaces were well maintained and in normal alignment, and no arthritic changes were seen.¹¹ An MRI of her lumbar spine was also conducted on September 7, 2018 and comparisons made to the previous x-ray. The MRI findings noted mild multilevel degenerative changes. Notably, there was no obvious neural compromise or central canal stenosis at any level.¹² I have not been provided with any additional evidence linking the subject accident with theses mild degenerative changes in her lumbar spine.

14All of the impairments noted above fall directly within the definition of a “minor injury” in s. 3(1) of the Schedule. Otherwise, the applicant has not made any submissions, or provided any evidence, related to non-minor injuries. For instance, there is no diagnosis of chronic pain, or a chronicity of pain symptoms affecting her functional capacity. Similarly, there was no reference to the six criteria, described in the American Medical Association Guides (AMA Guides), in reference to any potential chronic pain that may otherwise remove the applicant from the MIG.¹³

15Although there are references to a “longstanding”¹⁴ history of back pain, the applicant has not provided any pre-accident clinical notes and records, nor any other evidence to substantiate any claim of a pre-existing impairment that would prevent maximal recovery within the MIG treatment limits.

16When I consider the totality of evidence adduced, I am not persuaded the applicant has met her onus of establishing that her injuries are not minor injuries that fall beyond the scope of the MIG. The applicant sporadically reported accident-related pain to family physicians, though only for a total of seven times between May 2016 and January 2021. In fact, there were zero reports of accident-related pain to her family physicians in 2019. Similarly, there is a significant gap in the treatment records for the entire year of 2018, with no explanation.

17The soft tissue minor injuries listed in the OCF-3 and the OCF-18 at issue should all have subsided within 9-12 weeks, and certainly by August 2019, more than three-years post-accident. While I do not doubt the applicant suffers some back and neck pain, she has not established that her ongoing pain can be definitively traced to the 2016 accident, nor is there any indication that this pain is chronic in nature. Given these key weaknesses in the evidence, I cannot otherwise conclude that the applicant’s impairments are not minor injuries treatable outside of the MIG.

OCF-18 for Physiotherapy

18Given that the $3,500.00 treatment limit was exhausted in November 2016, no additional analysis is required to determine if this OCF-18 at issue is reasonable and necessary pursuant to the Schedule.

19In addition, the OCF-18 specifically states at Part 4 that the impairment suffered is predominantly a minor injury and treatment can be provided within the $3,500.00 MIG limit. So, even if the treatment limit had not been exhausted, this treatment would fall within the limits of the MIG.

Section 38(8)

20As an alternative argument, the applicant submitted that there was never a valid denial of the OCF-18 dated August 19, 2019 in accordance with s. 38(8) of the Schedule. Without a valid denial, the applicant may have access to funding for the OCF-18, pursuant to the remedy under s. 38(11).

21I am persuaded that the correspondence provided by the insurer, dated September 27, 2019 and March 5, 2020, complies with s. 38(8) of the Schedule.

22Section 38(8) of the Schedule states that, within 10 business days after it receives the OCF-18, the insurer shall give the insured person a notice that identifies the goods and services the insurer agrees to pay for, does not agree to pay for, and the medical and other reasons why the insurer considers the goods or services not to be reasonable and necessary.

23Section 38(9) states that, if that insurer believes the MIG applies to the insured person’s impairments, the notice under subsection (8) must so advise.

24Finally, s. 38(11) states that, if the insurer fails to provide a compliant notice with s. 38(8) in connection with an OCF-18, the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies. Further, the insurer shall pay for all goods and services described in that OCF-18 that have been incurred during the period following ten business days from its submission (up and until a valid denial is issued, if any).

25The applicant submits the correspondence at issue failed to provide medical reasons, pursuant to s. 38(8). In support of this assertion, the applicant relies on 18-000467 v. Aviva Insurance¹⁵, a Tribunal decision released in September 2018, where it was found the Explanation of Benefits was insufficient. Specifically, the Explanation of Benefits provided no specific details about the insured’s condition that formed the basis for the insurer’s decision. The Tribunal decision in M.B. v. Aviva Insurance Canada (“M.B.”) was also cited in this decision.¹⁶ Although M.B. addressed an issue focused on s. 44(1), it does equally apply to determinations regarding s. 38(8).

26Despite raising this argument, the applicant did not expressly seek a remedy through the application of s. 38(11) of the Schedule.

27Upon review, I find the September 27, 2019 correspondence from the respondent cites s. 38. It then states that the insurer believes the applicant’s injuries are predominantly minor in nature. It further cites a lack of medical documentation required to demonstrate that treatment above the MIG limits is required.¹⁷

28In my view, this information falls squarely within the reasoning of paragraph 26 of M.B., where Executive Chair Lamoureux stated that medical and other reasons may include information about the insured’s condition that the insurer does not have, but requires.¹⁸ By stating that it lacks medical documentation that demonstrates the need for treatment outside of the MIG, I am satisfied that the respondent’s denial provides medical and all other reasons for the denial of the OCF-18, as per s. 38(8).

29Though the finding above would be sufficient to establish a valid denial, I am further satisfied that the follow up correspondence from March 5, 2020 again provides the information needed for a valid denial. In this later correspondence, the respondent clearly indicates that it has considered the clinical notes and records provided, as the letter makes specific references to these records. These references include how the applicant’s back pain may be related to the applicant’s weight, the results of the MRI and a specific reference to a clinical note in October 2018.¹⁹ The insurer then cited s. 38(9) of the Schedule, indicating that the MIG applied. I am satisfied that the respondent has provided medical and all other reasons for the denial, as per s. 38(8).

30Further, both the September 27, 2019 and March 5, 2020 correspondence were accompanied by the Right to Dispute information commensurate with the requirements laid out in Smith v. Co-operators General Insurance Co. and Sietzma v. Economical Mutual Insurance Company.²⁰ These seminal and oft-quoted cases indicate that the Schedule is consumer protection legislation, and an insurer’s refusal to pay benefits must contain straightforward and clear language (directed to an unsophisticated person), a description of the most important parts of the dispute resolution process and the relevant time limits that govern the entire process.

31After reviewing the two sets of correspondence at issue, I am not persuaded the respondent failed to comply with s. 38(8). In other words, these were both valid denials the OCF-18 at issue, pursuant to the Schedule.

Interest

32Given there are no overdue payment of benefits, the applicant is not entitled to interest, pursuant to s. 51 of the Schedule.

ORDER

33The application is dismissed, and I find that:

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

ii. The OCF-18 dated August 19, 2019 for physiotherapy treatment is not payable;

iii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

Footnotes

1. 1Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24. (Div. Ct.).
2. 2Applicant’s Written Submissions, Disability Certificate (“OCF-3”), May 30, 2016, Tab 3.
3. 3Applicant’s Written Submissions, Treatment and Assessment Plan (“OCF-18”), August 19, 2019, Tab 3.
4. 4Ibid.
5. 5Applicant’s Written Submissions, Clinical Notes and Records of Dr. Francis Woo, May 2016-June 2018, Tab 3.
6. 6Applicant’s Written Submissions, Clinical Notes and Records of Vaughan Wellness Clinic, Tab 8.
7. 7Written Submissions of the Respondent, Clinical Notes and Records of MCI The Doctor’s Office, Dr. Sivajanani Sivarajah, July 16, 2018, Tab 9.
8. 8Ibid.
9. 9Applicant’s Written Submissions, Clinical Notes and Records of Physiomed, Tab 9.
10. 10Applicant’s Written Submissions, Clinical Notes and Records of Physiomed, August 19, 2019, Tab 9.
11. 11Applicant’s Written Submissions, Humber Valley X-Ray & Ultrasound, March 14, 2018, Tab 3.
12. 12Applicant’s Written Submissions, KMH Labs, Non-Contrast Magnetic Resonance Imaging Report, September 7, 2018, Tab 3.
13. 13American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 23-24.
14. 14Written Submissions of the Respondent, Clinical Notes and Records of MCI The Doctor’s Office, Dr. Sivajanani Sivarajah, July 16, 2018, Tab 9.
15. 152018 CanLII 112135 (ON LAT). Written Submissions of the Applicant, Tab 10.
16. 162017 CanLII 87160 (ON LAT).
17. 17Written Submissions of the Respondent, Correspondence from Wawanesa, September 27, 2019, Tab 13.
18. 182017 CanLII 87160 (ON LAT), para. 26.
19. 19Written Submissions of the Respondent, Correspondence from Wawanesa, March 5, 2020, Tab 14.
20. 20Smith v. Co-operators General Insurance Co. 2002 SCC 30, [2002] 2 SCR 129, 2002 SCC at para. 14, Sietzma v. Economical Mutual Insurance Company, 2014 ONCA 111.