Gonzalo Bojorque v. Wawanesa Mutual Insurance Company, 2023 CanLII 17712

Licence Appeal Tribunal File Number: 20-014657/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:

Gonzalo Bojorque

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR: E. Louise Logan

APPEARANCES:

For the Applicant: Bobby Vujicic, Paralegal

For the Respondent: Ryland MacDonald, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant, Gonzalo Bojorque, was involved in an automobile accident on August 18, 2018, and sought benefits from the respondent, Wawanesa Mutual Insurance Company, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) O. Reg. 34/10 (“Schedule”).

2The applicant was denied certain benefits and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The parties participated in a case conference where they identified and agreed to the issues in dispute which proceeded to a written hearing.

ISSUES

3The following issues were identified as being in dispute at the case conference:

1. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to the Minor Injury Guideline (“MIG”)?
2. Is the applicant entitled to a medical benefit in the amount of $5,062.70 for chiropractic treatment proposed in a treatment plan/OCF-18 (“OCF-18”) dated November 27, 2018?
3. Is the applicant entitled to a medical benefit in the amount of $1,998.00 for the cost of an orthopaedic assessment proposed in an OCF-18 dated December 28, 2017?
4. Is the applicant entitled to a medical benefit in the amount of $1,995.33 for the cost of a psychological assessment proposed in an OCF-18 dated October 26, 2018?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant has not demonstrated that his accident-related impairments warrant treatment beyond the MIG. As the parties have indicated the MIG limits have been exhausted, he is not entitled to the treatment and assessment plans in dispute. As there are no benefits owing, the applicant is not entitled to interest. The application is dismissed.

ANALYSIS

5The applicant was involved in an accident when the left front side of the vehicle he was driving was struck by another vehicle. Emergency services did not attend the accident, and the applicant was driven by his son to Humber River Hospital later the same day. At the hospital, the applicant complained of left shoulder, neck, and back pain. The hospital clinical notes and records indicate that it was a minor accident, the x-ray was normal, and the applicant had no severe injuries. The Disability Certificate (“OCF-3”), completed by Essential Physio Rehabilitation Inc. on August 21, 2018, lists nine accident-related conditions including insomnia, nervous driving, lumbar sprain and strain, injury at neck level, sprain and strain of the knee, ankle and thoracic spine.

Minor Injury Guideline

6Section 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.”

7An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under section 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery 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.

8The applicant makes three arguments in support of his removal from the MIG. First, he argues he has a pre-existing medical condition, namely a full thickness tear of the right shoulder, which precludes recovery within the MIG. Second, he argues he has a left knee / hip condition which does not fit the definition of a minor injury. Third, he argues that he has an accident-related psychological condition. I will address each of these arguments in turn.

Pre-existing medical condition

9I find the applicant has not demonstrated that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG for the following reasons.

10As noted above, section 18(2) provides that insured persons with minor injuries who have a pre-existing medical condition may be removed from the MIG. Section 18(2) requires the applicant to provide compelling evidence demonstrating:

(i) there was a pre-existing medical condition that was documented by a health practitioner before the accident; and

(ii) the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 on treatment costs under the MIG.

11The standard for excluding an impairment on the basis of a pre-existing condition is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG. It must be shown to prevent maximal recovery within the cap imposed by the MIG. In this case, there is no argument that the applicant had a pre-existing injury to his right shoulder. The issue to be decided is whether this injury prevents maximal recovery within the MIG limits.

12The applicant argues that his right shoulder injury was exacerbated as a result of the accident and, accordingly, he should be removed from the MIG. He cites the clinical notes and records of Dr. Li that show the applicant had injured his right shoulder in June 2017. The respondent does not dispute this. The applicant has not, however, pointed to any evidence that indicates his right shoulder injury will prevent maximal recovery within the MIG. As noted above, it is not sufficient to simply show there is a pre-existing condition, it is the applicant’s onus to provide compelling medical evidence that this condition prevents maximal recovery within the MIG.

13While not binding on me, I find the reasoning in Hartman-Stolk v. Co-operators General Insurance Company, 2017 CanLII 152622 (ON LAT) (“Hartman-Stolk”), cited by the respondent, to be helpful to my analysis in this case. In Hartman-Stolk, the Tribunal found the applicant had a pre-existing condition, but her submissions and evidence did not specifically indicate that she required treatment beyond the MIG due to her pre-existing condition. As a result, the Tribunal found the applicant had not met her evidentiary burden. Similarly, in this case, while it has been established that the applicant has a pre-existing right shoulder injury, he provides no evidence that speaks directly to the second half of the test under section 18(2). That is, he has not demonstrated that he requires treatment outside the MIG due to his pre-existing condition.

14As a result, I find the applicant has not met his evidentiary burden to demonstrate he requires treatment outside the MIG because of his pre-existing medical condition.

Left knee and hip injury

15The applicant submits that his left knee pathology, specifically a diagnosed medial meniscus tear, chondromalacia patellae and osteochondral injury, does not fall within the definition of minor injury and warrants removal from the MIG. In support of his position, he relies on the clinical notes and records of Dr. Li, MRIs of his left knee and left hip, and the consultation notes and reports of Dr. Krystyna Prutis, physiatrist.

16The respondent submits that the applicant has not established that his left knee pain and pathology were caused by the accident. Furthermore, it submits that even if the applicant’s knee pathology is accident-related, he has not provided sufficient evidence to prove it falls outside the definition of a minor injury in the Schedule.

17I find that the applicant has demonstrated, on a balance of probabilities, that he sustained a left knee injury as a result of the accident. However, I also find that his left knee injury falls within the definition of a minor injury for the following reasons.

18Upon review of the evidence, I find that the applicant did not complain of left knee pain when he visited the Humber River Hospital on the date of the accident. I note, however, that the OCF-3 dated August 21, 2018 lists “strain of the knee” as an accident-related injury. I agree with the respondent that the OCF-3 does not indicate which knee, but the clinical notes and records of Dr. Li show that the applicant complained of left knee pain following the accident in October 2018 and again in December 2018. The OCF-18 dated November 27, 2018 also notes left knee / ankle sprain and strain. I also agree with the respondent that the applicant did not complain of left knee pain to the insurer’s assessors, Dr. Rajka Soric, physiatrist, or Dr. Karen Spivak, psychologist, when they conducted their insurer’s examination (“IE”) assessments on January 22, 2019 and February 13, 2019, respectively. I find, however, that this simply means the applicant reported no symptoms or complaints about his left knee at the time of the IE assessments. It does not mean he did not have an accident-related left knee sprain / strain from August to December 2018.

19In August 2019, a year after the accident and eight months after Dr. Li’s clinical notes and records indicate he last reported knee pain, the applicant visited the Humber River Hospital for a left knee injury as a result of tripping and falling on the stairs at his home. The clinical notes and records of this hospital visit do not mention the accident. Dr. Li’s clinical notes and records indicate the applicant, who had not complained of knee pain since December 2018, began complaining of left knee pain again after the August 2019 fall. The applicant has not argued that “but for” the accident he would not have sustained the August 2019 injury, and Dr. Li does not relate his August 2019 left knee injury to the accident. Furthermore, all the consultations with Dr. Prutis, which the applicant relies on in support of his position that his left knee pathology is not a minor injury, took place after the August 2019 tripping incident. While Dr. Prutis states in January 2021 that the applicant’s knee pathology is accident-related, based on the evidence before me I find this is solely based on the applicant’s self-reporting.

20I find that the medical evidence shows the applicant sustained a left knee injury strain and sprain as a result of the accident, which had resolved by the time of the IEs in January and February of 2019. The evidence also shows he subsequently tripped and fell at home and hurt his left knee in August 2019, which warranted a trip to the hospital. While the applicant may well believe that his subsequent knee injury is a result of the accident, I find he has not provided compelling evidence to show this is the case.

21Accordingly, I find the applicant’s accident-related left knee injury falls within the definition of minor injury as defined in section 3 of the Schedule and is therefore subject to the MIG.

22In the applicant’s submissions related to his knee injury he also makes references to a hip injury, citing the clinical notes and records of Dr. Li. The applicant’s submissions sometimes refer to left hip pain, and sometimes right hip pain, but I have reviewed Dr. Li’s clinical notes and records and find they refer to left hip pain. No hip injury was mentioned during the applicant’s initial hospital visit, and no hip injury is listed on the OCF-3. The respondent submits that in his January 2019 IE report, Dr. Soric diagnosed the applicant with osteoarthritis of the left hip, which was likely pre-existing. The diagnosis of osteoarthritis was confirmed by an MRI ordered by Dr. Prutis in September 2021.

23The applicant’s initial submissions do not specifically argue that he has a hip injury that warrants removal from the MIG, but on reply he appears to argue that he has a left hip injury that either (i) does not fall within the definition of a minor injury, and/or (ii) is a pre-existing condition warranting removal from the MIG. From a review of the applicant’s submissions, I find it is not clear which hip, or which grounds, he is relying on with respect to this argument. Regardless, I find the applicant has not met his onus to demonstrate he has an accident-related hip injury that warrants removal from the MIG.

Psychological Condition

24The applicant argues he should be removed from the MIG on the basis of a psychological condition. In support of his position, he relies on the OCF-18 for a psychological assessment prepared by Dr. Kenneth Keeling, psychologist, on October 26, 2018. The applicant submits that in the course of preparing the OCF-18, Dr. Keeling performed a “mini-assessment” of the applicant. Under the heading “Additional Comments” on the last page of the OCF-18, Dr. Keeling included a section entitled “Clinical Information” which indicates he interviewed the applicant for the purposes of preparing the OCF-18, and to make a “provisional” diagnosis. In the OCF-18 Dr. Keeling notes the applicant reports fear of being in a car, flashbacks and intrusive thoughts about his accident, anxiety, loss of appetite, sleep disturbances, short term memory difficulties, lack of focus, motivation and irritability. Dr. Keeling then makes a “provisional diagnosis” of Adjustment Disorder with Anxiety and Depressed Mood, and Specific Phobia - Situational.

25The respondent relies on the February 13, 2019 IE report of Dr. Spivak, psychologist. In her report, Dr. Spivak noted the applicant reported he was not experiencing any anxiety while driving, and denied feelings of depression, anxiety, irritability or agitation. The applicant’s psychometric test results did not indicate clinically significant symptoms. Dr. Spivak opined that the applicant did not meet the full criteria for a DSM-5 diagnosis, is not psychologically impaired, and does not have serious emotional difficulties as a result of the accident.

26I prefer Dr. Spivak’s report for the following reasons. Dr. Keeling’s opinion is based on a pre-assessment interview he conducted for the purposes of preparing an OCF-18. He did not conduct a formal assessment of the applicant or administer any psychometric tests. He provided a “provisional diagnosis” in the form of additional comments in an OCF-18. In contrast, Dr. Spivak conducted an in-person clinical interview of the applicant with the support of a translator, reviewed twenty-three documents, conducted psychometric tests, and then provided an IE report with documented responses to specific referral questions. Based on her assessment, Dr. Spivak provided a formal opinion that the applicant is not psychologically impaired and does not have serious emotional difficulties as a result of the accident.

27As a result, I find the applicant has not met his onus to demonstrate he has a psychological impairment that warrants his removal from the MIG.

28For the reasons set out above, I find the applicant has not established, on a balance of probabilities, that his accident-related impairments warrant treatment beyond the MIG. As the parties indicated that the applicant has exhausted the MIG limits, he is not entitled to the treatment and assessment plans in dispute.

Interest

29As there are no benefits payable, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

CONCLUSION

30The applicant has not demonstrated that his accident-related impairments warrant treatment beyond the MIG. As the parties have indicated the MIG limits have been exhausted, he is not entitled to the treatment and assessment plans in dispute. As there are no benefits owing, the applicant is not entitled to interest.

31The application is dismissed.