Citation: Wahedi v. Wawanesa Mutual Insurance Company, 2023 ONLAT 21-009228/AABS

Licence Appeal Tribunal File Number: 21-009228/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:

Kochi 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

1Kochi 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 (“MIG”) limit?

ii. Is the applicant entitled to $3,518.00 for physiotherapy, proposed by Scarborough Physio in a treatment plan (“OCF-18”) submitted on December 29, 2020?

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

RESULT

3I find that:

i. The applicant’s impairments are predominantly minor and therefore subject to the treatment limits of the MIG;

ii. The applicant is not entitled to the OCF-18 in dispute;

iii. The applicant is not entitled to interest on any overdue payments of benefits.

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 has not established that she warrants removal from the MIG

6The applicant submits that she should be removed from the MIG on the basis of chronic pain. To establish her claim, she relies in large part on the Chronic Pain Medical Legal Assessment of Dr. Igor Wilderman, dated January 9, 2023, where Dr. Wilderman diagnosed her with chronic pain syndrome, lumbago, bilateral sacroiliac joint dysfunction and adjustment disorder. The applicant further argues that the clinical notes and records (“CNRs”) of her family physician and treatment records of her physiotherapy clinic, demonstrate her ongoing pain complaints in the years post-accident.

7The respondent disputes that the applicant has developed accident-related chronic pain. It submits that the family physician’s CNRs demonstrate that the applicant did not make any pain complaints until October 2021, two years post-accident or report any psychological symptoms. The respondent further argues that Dr. Wilderman’s report should be given limited weight, as it was based in large part on the applicant’s self-reports, it was not consistent with the medical record and Dr. Wilderman’s diagnosis of adjustment disorder was inconsistent with the psychological testing he had conducted.

8I do not find that the applicant has met her onus to prove accident-related chronic pain.

9I agree with the respondent that there are very limited reports of ongoing pain to Dr. Ihsan Al Hamami, the applicant’s family physician. In the month post-accident, the applicant attended at Dr. Al Hamami’s office three times, on November 7, 2019, November 12, 2019 and November 18, 2019 for unrelated medical reasons. However, she did not discuss the subject accident or report ongoing pain. Despite continuing to attend regularly throughout 2020 and 2021 for non-accident related reasons, the first mention of accident-related pain, was on October 19, 2021, almost two years post-accident. The applicant did not report pain symptoms to Dr. Al Hamami again, until more than a year later, on December 13, 2022. I agree with the respondent that these limited reports of ongoing pain are not compelling evidence of severe, chronic pain. Further, although in her submissions the applicant lists medication that she has had to take as a result of the accident, I agree with the respondent that the listed medications are for conditions that would not be accident-related.

10Further, I note that although the applicant attended physiotherapy from November 2019 to February 2020 and June 2020 to September 2020, her reports of ongoing pain vary in their severity. In multiple entries from November 2019 to January 2020, the applicant reported feeling progressively better, or complained of only “tension” in her back. In August 2020, the applicant’s pain complaints centred around left palm pain and her right front thigh, which were not accident-related complaints.

11The applicant relies in large part on the chronic pain report of Dr. Wilderman and his diagnosis of chronic pain syndrome. However, I agree with the respondent that Dr. Wilderman’s report is contradictory and relies almost exclusively on the applicant’s self-reports. Dr. Wilderman diagnosed the applicant with an adjustment disorder, despite finding that the applicant tested in the minimal range for anxiety and depression and exhibited no PTSD symptoms. No basis was provided for this diagnosis, other than reference to the applicant’s self-reports of feeling distressed. I also note that no psychological symptoms were reported by the applicant to her family physician in the four years post-accident.

12Further, a chronic pain diagnosis or ongoing pain by itself does not remove the applicant from the MIG. It must be accompanied by some functional impairment, 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT). For chronic pain to be more than sequelae from soft tissue injuries, it must be: (1) continuous, or chronic pain syndrome; and (2) it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae. Unless the applicant provides evidence that the pain she experiences contains these elements, the pain is sequelae of a MIG injury.

13To establish functional impairment, the applicant points to Dr. Wilderman’s reports of her reduced working hours, difficulty performing housekeeping tasks and decreased memory and concentration. However, I agree with the respondent that Dr. Wilderman’s findings of functional limitations due to pain, were based on the applicant’s self-reports. With respect to workplace limitations, no evidence was provided from the applicant’s employer to indicate any workplace restrictions. Further, the CNRs of Dr. Al Hamami do not indicate any reports of functional limitations until two years post accident, where the applicant provided a general statement that aches and soreness were “preventing her from doing activities”. However the activities were not specified. The CNRs also do not indicate any injury, outside of soft-tissue strains and sprains. As such, I agree with the respondent that the applicant’s self-reports of persistent functional limitations to Dr. Wilderman, are not supported by the medical record.

14The applicant further argues that Dr. Wilderman’s diagnosis of chronic pain must be accepted, as it has not been rebutted by medical evidence from the respondent. She submits that the respondent should have completed its own s. 44 assessment. However, I agree with the respondent that s. 38 of the Schedule does not necessitate that a s. 44 assessment must be conducted. The onus rests with the applicant to lead sufficient compelling evidence of chronic pain with functional impairment or disability.

15Given the lack of sufficient evidence of functional impairments and limited evidence of ongoing pain reports, the applicant has not established chronic pain warranting removal from the MIG.

The applicant is not entitled to the disputed treatment plan for physiotherapy

16The parties agree that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. As I have found that the applicant has failed to prove that she should be removed from the MIG, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plan.

Interest

17Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.

ORDER

18For the reasons outlined above, I find that:

i. The applicant remains in the MIG; and

ii. The applicant is not entitled the treatment plan in dispute, or interest.

19The application is dismissed.