Citation: Sampson-Samuel v. Wawanesa Mutual Insurance Company, 2023 ONLAT 20-006829/AABS

Licence Appeal Tribunal File Number: 20-006829/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:

Damiel Sampson-Samuel

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Kateryna Vlada, Counsel

For the Respondent: Kathleen O'Hara, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Damiel Sampson-Samuel, the applicant, was involved in an automobile accident on October 20, 2017, 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 limit and in the Minor Injury Guideline?

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from April 18, 2018 to October 20, 2019?

iii. Is the applicant entitled to $1,293.11 for chiropractic treatment, proposed by Inline Rehabilitation Centre Inc. ("Inline Rehabilitation") in a treatment plan ("OCF-18") denied on August 23, 2018?

iv. Is the applicant entitled to $1,920.53 for psychological treatment, proposed by Inline Rehabilitation in an OCF-18 denied on August 23, 2018?

v. Is the applicant entitled to $3,948.91 for physiotherapy, proposed by Inline Rehabilitation in an OCF-18 denied on August 23, 2018?

vi. Is the applicant entitled to $3,191.25 for chiropractic treatment, proposed by Inline Rehabilitation in an OCF-18 denied on June 8, 2018?

vii. Is the applicant entitled to $2,967.84 for psychological treatment, proposed by Inline Rehabilitation in an OCF-18 denied on July 3, 2018?

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

RESULT

3I find that:

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

x. As the full MIG limit on medical benefits has been exhausted, an analysis of whether the disputed treatment and assessment plans are reasonable and necessary is unwarranted.

xi. As no benefits are owing, no interest is payable.

ANALYSIS

Respondent's motion to exclude new evidence

4The respondent brought a notice of motion dated January 25, 2022 objecting to the applicant's reply submissions. The respondent seeks an order excluding portions of the applicant's reply submissions on the basis that it contains new evidence – specifically, the applicant's inclusion of his outstanding balance statement at Inline Rehabilitation. The respondent submits that it is prejudiced by the late filing of this evidence, as it had not been permitted to review and respond to the evidence or mount a proper defence. The respondent requests that the outstanding balance statement and paragraph 5 of the applicant's reply submissions, be struck.

5The applicant submits that the outstanding balance statement is not new information, and notes that the outstanding balance is simply the cumulative balance of the treatment plans listed as issues in dispute. In addition, the applicant submits email correspondence previously sent to the respondent, which detailed the total amount of incurred and denied treatment.

6On review of the parties' submissions, I agree with the applicant that this was information which had previously been provided to the respondent, albeit in different form. Given that it is not new information, I do not find that the respondent would be prejudiced by its inclusion. As such, the respondent's request to strike portions of the applicant's reply submissions is denied.

Minor Injury Guideline ("MIG")

7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured 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."

8An insured 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 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.

9The applicant submits that he should be removed from the MIG on the basis of his physical impairments, chronic pain and psychological impairment.

The applicant has not established physical impairments warranting removal from the MIG

10The applicant submits that as a result of the accident, he sustained serious physical impairments including head trauma/concussion and injuries to his right wrist, neck and back. To establish his claim, the applicant relies on two Disability Certificates ("OCF-3s") prepared by chiropractors Dr. Ryan Albert and Dr. Farhan Khandwalla, which list impairments including: concussion, WAD II, sprain and strains of the neck, back and wrist. The applicant also submits hospital records from the time of the accident, clinical notes and records ("CNRs") of his family physician and diagnostic imaging of his head, back and wrist, which he contends clearly establish physical impairments that place him outside of the MIG.

11I find that the applicant has not led sufficient evidence to demonstrate that his physical accident-related impairments warrant removal from the MIG.

12Upon review of the evidence, I find that the applicant has not established that he suffered a concussion as a result of the accident. The only formal diagnosis of a concussion was provided by the applicant's chiropractors, referenced in the respective OCF-3s. However, I agree with the respondent that a diagnosis of a concussion would be beyond the scope of practice of a chiropractor. The applicant does not direct me to any evidence that he was diagnosed with a concussion by his family physician, any treating physician, or at the hospital at the time of the accident.

13The hospital records indicate that the applicant suffered a head injury at the time of the accident. A CT scan was ordered, which showed no intracranial abnormalities, but found mild, diffuse extra-cranial soft-tissue swelling on the right frontal and anterior parietal bone. The applicant appears to be arguing that this diagnostic imaging is evidence of a head injury/concussion sufficient to warrant his removal from the MIG. However, he provides no evidence or caselaw in support of his assertion that such external swelling is a non-minor injury or that it substantiates a concussion. Further, I note that the CNRs of the applicant's family physician do not indicate that he reported post-concussive symptoms to his doctor after October 21, 2017. In fact, in subsequent CNR entries dated October 25, 2017 and September 27, 2018, it was expressly noted that there were no neurological or cognitive symptoms.

14With respect to physical impairments to his neck, wrist and back, the applicant similarly has not led sufficient evidence to establish that these were non-minor injuries. The OCF-3s prepared by the applicant's chiropractors record his accident-related injuries as being: WAD II, sprain and strains of the neck, back and wrist. I note that such strain and sprain type injuries fall squarely within the definition of a minor injury. This was corroborated by the respondent's IE assessor, Dr. Sekyi-Otu, orthopaedic surgeon, who opined that the applicant's strains of the cervical, thoracic and lumbar spine, shoulder girdles and right wrist, all fell within the MIG. A subsequent X-Ray and ultrasound of the wrist did not show any abnormalities.

15The applicant argues that the November 2, 2018 MRI of his back, showing multilevel disc bulges and disc protrusions with bilateral neural foraminal stenosis in the lower back, is sufficient evidence of physical injury warranting removal from the MIG. However, the applicant has not established that these injuries were accident-related, as opposed to degenerative changes. The applicant places significant weight on the fact that the MRI report states that at the L4 and L5 lumbar region, there is central disc protrusion and bilateral neural foraminal stenosis. However, I note that in the conclusion section of the report, it states "mild degenerative changes in the lower lumbar spine with neural foraminal stenosis at L4/5". I agree with the respondent's submissions that this report appears to identify degenerative changes at the lower lumbar level, being L4/5.

16The applicant has not provided any evidence that his treating physicians opined that the disc bulges and stenosis were accident-related, and not degenerative. Although the applicant cites the Tribunal decision Heifa v. Wawanesa Insurance, 2021 CanLII 108364 in support of his assertion that a central disc bulge does not fall under the definition of a minor injury, I find that this case can be distinguished. In Heifa, the applicant relied upon a chronic pain and functional impairment disability report, which expressly opined that the impairments, including a prolapsed disc, were a direct result of the accident. In the matter at hand, the applicant has not provided any such medical opinion that the impairments noted in the MRI were accident-related. He points to the fact that the MRI report lists under the clinical history: "MVA October 2017. Low back pain", as evidence that the findings were causally linked to the accident. I disagree. The clinical history appears to be a reference to the reason for the referral or a recitation of prior events, and I find the conclusion section of the report to be more persuasive.

17As such, I find that the applicant has not established that he has sustained non-minor physical injuries sufficient to warrant removal from the MIG.

The applicant has not demonstrated a psychological impairment warranting removal from the MIG

18The applicant submits that as a result of the accident, he has sustained a psychological impairment, placing him outside the MIG. To establish his claim, the applicant relies on a psychological assessment conducted by Dr. Kleiman, who diagnosed the applicant with Specific Phobia – Situational (driving and passenger related). In response, the respondent argues that the applicant had not reported any psychological complaints to his treating physician and that its IE assessor Dr. Robinson did not find any objective evidence of a diagnosable accident-related disorder.

19When comparing the assessment report of Dr. Kleiman to the IE report of Dr. Robinson, I prefer Dr. Robinson's IE report. I agree with the respondent that it is unclear on what basis Dr. Kleiman concluded that the applicant suffered from driving and passenger-related phobia, given that the applicant stated that he was presently not driving "because he does not have access to a vehicle" and that he reported only "occasionally" avoiding riding in a vehicle. In contrast, Dr. Robinson noted that the applicant did not report a perceived need for treatment and did not find evidence of a diagnosable psychological disorder.

20I find that Dr. Robinson's findings of no diagnosable psychological condition, is consistent with the lack of reports of psychological complaints in the medical record. The respondent cites the Tribunal decision, Velautham v. Allstate Insurance Company, 2021 CanLII 19429 (ONLAT), in support of its assertion that a psychological assessment that is not supported by any medical evidence should be given limited weight. The applicant claims that his lack of reporting of psychological complaints to a family physician is not determinative, since psychological treatment is not covered through OHIP and as such, he turned to his insurer for treatment rather than his family doctor.

21I do not find the applicant's argument to be persuasive. Firstly, I note that it is not uncommon for psychological complaints to be reported to family physicians and for such primary care physicians to make diagnoses, prescribe medication for psychological conditions and/or make referrals to psychiatrists for supportive treatment, within the OHIP system. Secondly, although the applicant claims that he has instead sought psychological treatment from his insurer, I do not see this reflected in the account balance provided by the applicant. The balance statement indicates that the vast majority of treatment the applicant incurred was for a variation of weekly sessions for physical rehabilitation, chiropractic treatment, exercise and massage treatment. In contrast, it appears that he attended only one psychotherapy session. As such, it appears that neither the medical record, nor the account balance statement, indicate that the applicant sought ongoing psychological treatment.

22Based on the evidence, I do not find that the applicant has established a psychological impairment warranting removal from the MIG.

The applicant has not established chronic pain warranting removal from the MIG

23The applicant submits that he has developed chronic pain as a result of the accident. He relies on the CNRs of Dr. Ralhan to establish his ongoing accident-related pain complaints and a diagnosis of chronic pain. The applicant further submits that his chronic pain has caused ongoing functional impairment.

24I find that the applicant has not led sufficient evidence to demonstrate that he has developed chronic pain as a result of the accident. The CNRs of Dr. Ralhan indicate a limited number of visits for accident-related wrist and back pain complaints. The applicant reported pain to Dr. Ralhan twice in 2018, not at all in 2019 and three times in 2020. It does not appear that the applicant was ever prescribed any prescription pain medication after the accident, and the CNRs do not indicate any referrals for specialized chronic pain treatment.

25Although there is one reference to chronic pain in the CNRs of Dr. Ralhan, with respect to wrist pain, I agree with the respondent that this does not appear to be a formal chronic pain diagnosis. On March 11, 2020, the applicant attended at Dr. Ralhan's office complaining of wrist pain. There is a reference to chronic pain, but it is noted that the applicant "is not having difficulty playing basketball". I note that the applicant had last attended at Dr. Ralhan's office for wrist pain more than two years previously, on December 29, 2017. At that visit, Dr. Ralhan noted that the applicant had wrist pain even before the accident. As such, I do not find that the single CNR reference to chronic wrist pain after a two year lag in such pain reports is sufficient evidence of a diagnosis of chronic pain syndrome.

26Further, the applicant has provided limited evidence of functional impairment. He points to his self-reports to Dr. Ralhan and his chiropractors of ongoing pain, difficulty lifting, bending and loss of right hand grip strength. The applicant further references his self-reports to his psychological s. 25 assessor that he was limited in exercising, playing with his children and doing heavier household chores. However, the applicant has not provided any objective medical evidence corroborating these claims.

27Although the applicant reported functional impairment and loss of grip strength to Dr. Ralhan, upon testing, Dr. Ralhan noted that the applicant's grip strength was 5/5. The respondent's IE assessors similarly did not find functional limitations. Dr. Sekyi-Otu found no objective signs of impairment despite the applicant's self-reports, and Mr. Phillips, occupational therapist, found that the applicant had full and functional ranges of motion. The applicant has not provided sufficient medical evidence to refute Dr. Sekyi-Otu and Mr. Phillips' findings of soft tissue injuries and limited functional impairment.

28As such, I find that the applicant has not met his onus of establishing pain of the duration, severity and functionally disabling extent necessary to remove him from the MIG.

29In its submissions, the respondent has confirmed that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been approved. As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

Non-Earner Benefit ("NEB")

30Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a "complete inability to carry on a normal life" as "an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident." The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant's pre- and post-accident activities.

31The applicant submits that he suffers from a complete inability to carry on a normal life due to his chronic pain and physical impairments. To establish his claim, he relies on the OCF-3s and his statements to various assessors detailing his inability to exercise, play with his children, produce music and do housework such as laundry. I find that the applicant has failed to prove on a balance of probabilities that he suffers from a complete inability to carry on a normal life.

32All three of the respondent's IE assessors found that the applicant did not suffer from a complete inability to carry on a normal life as a result of the accident. Although the applicant submits that he is unable to do housekeeping tasks such as laundry, Mr. Phillips noted that the applicant was able to carry a full laundry basket down two flights of stairs, and participate in household and self-care tasks. Mr. Phillips also found that the applicant had full range of motion in the cervical spine and functional range of motion in the lumbar spine. Dr. Sekyi-Otu found no objective signs of ongoing impairment despite the applicant's self-reports of functional limitations. The applicant has not provided any objective medical evidence to refute the IE assessors' findings.

33Further, in his submissions, the applicant does not identify the activities he values or provide evidence of the frequency and time commitments of his pre-accident activities, as required by Heath and in many NEB cases at the Tribunal, such as 16-003141 v. Aviva Insurance Canada, 2017 CanLII 46352 (ONLAT). In the absence of this information, it is difficult to compare his pre and post-accident capabilities with respect to the activities he ordinarily engaged in or valued.

34On this basis, I find that the applicant has not established entitlement to an NEB for the period in dispute.

Interest

35Section 51 of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

36As no benefits are overdue, no interest is payable under s.51.

ORDER

37For the reasons set out above, I find that:

(i) The applicant's injuries fall within the MIG;

(ii) The applicant is not entitled the disputed treatment plans or a non-earner benefit; and

(iii) The applicant is not entitled to interest.

38The application is dismissed.