Bruni v. Wawanesa Insurance
Licence Appeal Tribunal File Number: 20-015446/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:
Abbie Bruni
Applicant
And
Wawanesa Insurance
Respondent
DECISION
ADJUDICATOR: Anita Goela
APPEARANCES:
For the Applicant: Agal Lankeswaran, Paralegal
For the Respondent: Jonathan Heeney, Counsel
HEARD: In Writing
REASONS FOR DECISION
BACKGROUND
1The applicant was involved in an automobile accident on August 18, 2018, 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”) for resolution of the dispute.
2The respondent has taken the position that the applicant is subject to treatment within the $3,500.00 limit under the Minor Injury Guideline (“MIG”). The applicant has exhausted the MIG limit. Her position is that she should be removed from the MIG and that further treatment is reasonable and necessary.
ISSUES
3The parties participated in a case conference on June 11, 2021 and agreed on the issues to be determined in this appeal. The issues are set out in the Case Conference Report and Order. They are as follows:
i. Are the applicant’s injuries predominantly minor injuries as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and the MIG?
ii. Is the applicant entitled to $2,569.50 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan submitted on September 12, 2020?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is subject to the MIG.
5The disputed physiotherapy services treatment plan is not payable.
6The applicant is not entitled to interest.
ANALYSIS
7The applicant’s vehicle was rear-ended while exiting off a highway ramp. The airbags did not deploy. She was seen by paramedics at the scene and at the hospital. She was discharged from the hospital the same day without imaging.
8In order to be removed from the MIG, the applicant must demonstrate that she sustained an impairment as a result of the accident that is not captured by the definition of a “minor injury” under the Schedule. The applicant submits that she should removed from the MIG because she suffers from accident-related chronic pain and psychological impairment.
9The applicant bears the onus of proof. Causation is essential in these cases. The applicant must prove that the accident is the cause of her impairments. The respondent’s central argument is that the applicant has a significant pre-accident medical history, specifically her gender transition and related surgery, that could be the cause of the applicant’s impairments. The respondent provides compelling argument that causation is a live issue in this case.
10The applicant submitted almost 600 pages of medical information. In her initial submissions, the applicant did not point me to any references in her medical evidence. Only after the respondent pointed out the deficiencies in her evidence, in reply, did the applicant direct me to three clinical notes and records (“CNR”) to support her claim.
11Two of the three CNR are from her family physician, Dr. Chan. The first, dated September 10, 2018, indicates that the applicant was in an accident, has back pain and attends physiotherapy every 2 weeks. The second, prepared over two years later on September 23, 2020, mentions chronic back pain from the accident for the first time. I note that this 2020 appointment was conducted over the phone and no physical examination was conducted. There were many appointments in the 2 years between these notes; however, the substance of those appointments was unrelated to the accident.
12The third CNR, dated August 21, 2021, is from Painless Medicine and Therapeutics, which states that the applicant has been experiencing back pain since the accident in August of 2018. I agree with the respondent that Dr. Chan indicated that the reason for the referral was related to “a back sprain last January.” This seems to suggest that the applicant sprained her back on an occasion after the accident. The applicant does not explain the discrepancy.
13In support of the respondent’s position that the accident is not the cause of the applicant’s pain, it points to the applicant’s gender transition surgical history, arguing that her impairments are actually related to that. I assign significant weight to the medical consultation note dated March 20, 2018 by Dr. Vlaocic, urologist, on which the respondent relies. In the consultation note, Dr. Vlaocic indicates that a risk of the surgical procedure is chronic pain. Dr. Vlaocic does not state where the chronic pain would be localized. Three months before the accident, the applicant underwent an orchiectomy surgery.
14The applicant obtained a chronic pain report by Dr. Yim, who stated that the applicant suffers from chronic pain on July 20, 2021. I assign little weight to Dr. Yim’s report because it appears that he did not consider nor was he even aware of the applicant’s surgical history and hormone therapy. The report cannot be relied on given the assessor did not review and consider the applicant’s full medical history. At minimum, Dr. Yim should have been made aware of the fact the applicant had the surgery and how that may have also impacted her ongoing pain.
15The respondent relies on Tribunal decision LVD v. Aviva. 2019 CanLII 43875, in which the adjudicator remarked that he was “concerned by the failure of the applicant’s experts to mention his serious, pre-accident health conditions.” I find this reasoning to be applicable here and also have concerns regarding the reliability of the applicant’s chronic pain report and conclusions that the applicant suffers from accident-related chronic pain where there is medical documentation stating that she may experience chronic pain as a result of her unrelated surgery. The applicant’s submissions do not address how her pain can be traced solely to the accident and not to her surgery, raising causation concerns.
16In addition to chronic pain, an applicant may be removed from the MIG on the basis of a psychological impairment. However, I find the applicant has not demonstrated on a balance of probabilities that she suffered an accident-related psychological impairment. The OHIP summary documents numerous entries of “depressive and other non-psychotic disorders” and an emergency record for “psychosomatic disturbances” before the accident. I find there is considerable evidence that the applicant experienced mental health issues prior to the accident.
17I find that this history of depressive and psychosomatic entries further supports the respondent’s position that the accident is not the cause of the applicant’s impairments.
18The applicant submitted a psychological report by Mila Popova, psychotherapist. Similar to the deficiencies in the chronic pain report, the assessor did not address the applicant’s medical history as it relates to her gender transition. Ms. Popova should have been made aware of the fact the applicant had the surgery and how that may have also impacted her psychologically.
19Again, it is unclear why the applicant did not address her pre- and post-accident health history. Without an explanation or any medical evidence tying the applicant’s pain specifically to the accident, I cannot reconcile the facts with the conclusions reached in the reports, as I find that the assessors did not have a full appreciation of the applicant’s pre- and post-accident medical condition in order to overcome the causation hurdles identified by the respondent.
20On balance, I agree with the respondent that the applicant has not provided sufficient evidence to demonstrate that her impairments are accident-related or that her pre-existing medical conditions prevent maximal medical recovery if subject to the $3,500.00 limit of the MIG, which is her burden to meet.
21For these reasons, I find the applicant is subject to the MIG. As the applicant has exhausted the MIG limits, she is not entitled to further treatment. Accordingly, an analysis of whether the treatment plan in dispute is reasonable and necessary is not required, as no benefits are payable.
CONCLUSION AND ORDER
22The applicant is subject to the MIG.
23The disputed physiotherapy services treatment plan is not payable.
24The applicant is not entitled to interest.
25The application is dismissed.
Released: March 6, 2023
Anita Goela
Adjudicator