Citation: Wahedi v. Wawanesa Mutual Insurance Company, 2023 ONLAT 21-009230/AABS

Licence Appeal Tribunal File Number: 21-009230/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:

Takwa Wahedi

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Raffi Akelian, Counsel

For the Respondent:

James Schmidt, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Takwa Wahedi, the applicant, was involved in an automobile accident on October 24, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute 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 Minor Injury Guideline limit?

ii. Is the applicant entitled to $2,739.00 for physiotherapy treatment, proposed by Scarborough Physiotherapy in a treatment plan (“OCF-18”) submitted on May 27, 2021?

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

RESULT

3I find that the applicant remains within the MIG; however, the applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.

ANALYSIS

Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. 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.”

5An insured person may be removed from the MIG if they can 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 combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

The applicant did not sustain injuries that warrant removal from the MIG

6The applicant submits that as a result of the accident, she suffered a left shoulder impairment and developed chronic pain, warranting removal from the MIG. She relies on a December 18, 2019 ultrasound of her left shoulder, which found a small subscapularis intrasubstance tear in the shoulder. To establish her chronic pain, the applicant relies on the clinical notes and records (“CNRs”) of her family physician, and a November 30, 2022 Physiatry Assessment by Dr. Zeeshan Waseem. Dr. Waseem diagnosed the applicant with chronic left shoulder tendinitis and chronic myofascial pain of the cervical spine.

7I find that the applicant has failed to prove on a balance of probabilities that she suffers from non-minor accident-related impairments.

8With respect to the applicant’s left shoulder injury, I agree with the respondent that the December 2019 ultrasound revealed a small subscapularis intrasubstance tear, which is a partial tear. The Tribunal has consistently found that partial thickness tears fall within the MIG. The remaining physical impairments cited by the applicant are all soft tissue strains and sprains, which fall squarely within the definition of a “minor injury”.

9I further find that the applicant has not led sufficient evidence to establish that she has developed accident-related chronic pain. The CNRs of her family physician show that soon after the accident, in November and December 2019, the applicant reported pain in her lower back, neck and left shoulder. However, from my review of the CNRs of Dr. Ihsan Al Hamami, the applicant did not again complain about shoulder pain until March 17 and 24, 2022, more than two years later. Dr. Al Hamami conducted a shoulder exam, found normal range of motion and ordered diagnostic imaging. Unlike in the December 18, 2019 ultrasound, the April 1, 2022 ultrasound found no partial tear in the left shoulder and was “unremarkable”. The applicant did not report pain again to Dr. Al Hamami until January 23, 2023. This is despite the fact that the applicant attended at her doctor’s office numerous times from 2019 to 2023 for unrelated medical reasons. If the applicant was experiencing severe, ongoing pain over this three year period, I would have expected to have seen a consistent reference to such accident-related pain reports in the family physician’s CNRs.

10Although the applicant relies in large part on the physiatry assessment of Dr. Waseem to establish her chronic pain, I agree with the respondent that the assessment is of limited persuasive value. Dr. Waseem diagnosed the applicant with chronic left shoulder tendinitis, despite the applicant reporting that she only felt left shoulder pain “a few times per week” for only 5-15 minutes. Further, from his report, it appears that Dr. Waseem had only reviewed the December 18, 2019 ultrasound, which showed the partial tear but did not review the normal April 1, 2022 ultrasound, when assessing the applicant’s shoulder impairment. As such, it does not appear that Dr. Waseem was provided a fulsome medical record when coming to his conclusions.

11Further, I find that the applicant has not led sufficient evidence of functional impairment stemming from chronic pain. In order to be removed from the MIG on the basis of chronic pain, an applicant must also establish functional impairment or disability, see for e.g., 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT). However, there is limited evidence of any functional impairment.

12In his physiatry assessment, Dr. Waseem found that the applicant had normal range of motion in her cervical, thoracic and lumbar spine and normal range of motion in her shoulder. Dr. Al Hamami conducted a shoulder exam on March 24, 2022 and also found normal range of motion, and no tenderness. In his report, Dr. Waseem confirmed that the applicant was working full-time as an early childhood educator, without any accommodations or modifications and that she has not received any negative feedback about her performance. The only functional restrictions noted were with respect to occasional assistance with bathing and hair care due to shoulder pain and difficulties with heavier housekeeping tasks. However, these limited restrictions are based solely on the applicant’s self-reports. The applicant does not direct me to any CNR entry where functional impairments were reported to or noted by her family physician.

13Finally, the applicant submits that the respondent failed to complete its own s. 44 assessment, and as such, her evidence should be preferred. I agree with the respondent that s. 38 of the Schedule does not require that a s. 44 assessment must be conducted, but rather, the onus rests with the applicant. In the matter at hand, the applicant has not met her onus to prove that she suffered from chronic pain with functional impairments, warranting removal from the MIG.

14As I have found the applicant to be within the MIG, it is not necessary for me to consider the reasonableness and necessity of the treatment plan in dispute.

15Further, the applicant has led evidence that the respondent has paid $3,314.09 in medical and rehabilitation benefits. This leaves $185.91 remaining under the MIG limit of $3,500.00. The applicant is entitled to the remaining balance of the MIG limit, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.

ORDER

16I find that:

i. The applicant has failed to demonstrate that her accident-related impairments warrant removal from the MIG.

ii. However, the applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.