Citation: Pham v. Wawanesa Mutual Insurance Company, 2023 ONLAT 21-002032/AABS

Licence Appeal Tribunal File Number: 21-002032/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:

Thi-Mai Pham

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Jessie Vi Tran, Paralegal

For the Respondent:

Symone Marlowe, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Thi-Mai Pham, the Applicant, was involved in an automobile accident on August 17, 2018, 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 Wawanesa Mutual Insurance Company, the Respondent, 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 section 3 of the Schedule and subject to the MIG and the $3,500.00 funding limit on treatment?

ii. Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for physiotherapy services proposed in a treatment plan (“plan”) by Pain Rehabilitation Clinic Inc., dated March 20, 2019?

iii. Is the Applicant entitled to a medical benefit in the amount of $700.00 for physiotherapy services proposed in a plan by Pain Rehabilitation Clinic Inc., dated June 19, 2019?

iv. Is the Applicant entitled to a medical benefit in the amount of $2,600.64 for physiotherapy services proposed in a plan by Pain Rehabilitation Clinic Inc., dated December 20, 2019?

v. Is the Applicant entitled to a medical benefit in the amount of $1,500.00 for a functional abilities evaluation proposed in a plan by Pain Rehabilitation Clinic Inc., dated March 20, 2019?

vi. Is the Applicant entitled to a medical benefit in the amount of $3,500.00 for a chronic pain assessment proposed in a plan by Pain Rehabilitation Clinic Inc., dated June 5, 2020?

vii. Is the Applicant entitled to costs for other goods and services in the amount of $200.00, submitted on December 27, 2019?

viii. Is the Applicant entitled to costs for other goods and services in the amount of $200.00, submitted on May 25, 2020?

ix. Is the Applicant entitled to interest on any overdue payment of benefits?

3In her submissions, the Applicant withdrew the claim for the chronic pain assessment, therefore I need not address the issue. There were no submissions or evidence regarding the two claims for $200.

RESULT

4The Applicant sustained a minor injury as a result of the accident. The Applicant is not entitled to the treatment and assessment plans in dispute because they propose treatment outside of the MIG and the $3,500.00 funding limit on treatment for a minor injury. The Applicant is also not entitled to any of the $200 claims as she has not met her burden of proof.

5No benefits are owed therefore no interest is payable.

6The application is dismissed.

ANALYSIS

The Minor Injury Guideline

7The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

8Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An Applicant may receive funding for treatment beyond the $3,500.00 limit if they can provide evidence of an injury that is not included in the minor injury definition.

9Pursuant to subsection 18(2), the funding limit does not apply if the Applicant’s heath practitioner determines and provides compelling evidence that a pre-existing medical condition will preclude her recovery if subject to the MIG.

10It is the Applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities See: Scarlett v. Belair Insurance, 2015 ONSC 3635, paragraph 24 (Div. Ct).

11The Applicant submits that she had pre-existing conditions that prevent maximal recovery if confined to the MIG limits. Alternatively, she submits that she sustained psychological injuries and chronic pain as a result of the accident, which are not included in the definition of a minor injury.

Pre-Existing Conditions

12The Applicant submits that she had pre-existing musculoskeletal issues related to her neck, back, chest, shoulders, knees, arms and wrists.

13I am not persuaded the Applicant has established on a balance of probabilities that she suffered from a pre-existing condition which would preclude her maximal recovery from a minor injury following the accident if she remains in the MIG. It is well settled that a pre-existing condition does not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal medical recovery within the cap imposed by the MIG.

14Imaging from May 2013 revealed degenerative changes of her spine or herniation. Clinical notes and records of the family from 2016 and 2017 document a history of chronic pain “bilateral feet and knees”, and prescriptions for Indomethacin. In August 2017 she complained of on and off back pain and was prescribed Baclofen and Indomethacin. She complained of numbness in her hands in September 2017 and was prescribed Lyrica. She attended hospital in November 2017 for chest pain, headaches, and dizziness and was evaluated for high blood pressure. Parking permit forms were completed by the family doctor both pre- and post-accident. There was no pre-accident imaging of her knees or wrists.

15Post-accident the Applicant did not seek immediate medical attention. She attended a collision reporting centre and went home or to work. She took a couple days off and then returned to her full-time self-employment as a hairdresser.

16No Disability Certificate (“OCF-3”) was submitted into evidence, which would have provided a description of her accident-related injuries and any pre-existing conditions. It appears she began attending treatment with Pain Rehabilitation Clinic prior to consulting with her family physician. Dr. Bui, chiropractor, referred the Applicant for imaging of her neck on September 10, 2018, which revealed mild to moderate degenerative changes. The initial “pain diagram” dated September 5, 2018, identified chest pain, neck pain and left shoulder pain. There was no indication of any knee, wrist, or back pain. A new pain diagram dated April 10, 2019, identified pain in her neck, mid back, and left wrist. Imaging of her wrist dated January 31, 2019, revealed an old, healed, united fracture of the scaphoid bone.

17The Applicant’s first post-accident visit to her family doctor, Dr. Pham, did not occur until December 11, 2018, when she complained of neck pain. Tenderness was noted, and her range of motion was normal. No pain medication was prescribed. The Applicant was seen on two occasions for unrelated issues, and then in September 2019 she reported on and off lower back pain. She was prescribed Baclofen and Diclofenac at the same dosages as pre-accident. In February 2020 she complained of right wrist pain, was diagnosed with Carpal Tunnel Syndrome, and prescribed Lyrica. She reported ongoing numbness in her right wrist in May 2020 and that Lyrica was helping. In November 2020 she reported on and off low back pain, triggered by walking. In May, July, and October 2021 she complained of right knee pain triggered by using stairs and was prescribed Diclofenac at the same dosage as previous. In April 2022 she complained of left knee pain for one week. The doctor noted that there was no injury to her knee.

18I place weight on the Insurer’s Examination (“IE”) completed by Dr. R. Zarnett (orthopaedic surgeon), dated February 22, 2019. The Applicant reported current complaints of neck and left wrist pain. She was not using any braces or splints and was taking over-the-counter pain medication for her symptoms. She reported having fractured her left wrist 30 years prior. The Applicant reported returning to work as a hairdresser within a week of the accident and continued to work without limitation or restriction. She was independent with self care and had some help with heavier housekeeping tasks from her son. Upon examination, Dr. Zarnett concluded that she sustained predominantly minor injuries. There was no evidence of any musculoskeletal abnormalities of the neck. In the left wrist there was a small dorsal ganglion that was likely pre-existing, but it had not resulted in any limitation or restriction.

19The only imaging of the Applicant’s knees is one x-ray of her right knee completed in May 2022 which revealed mild osteoarthritis and small to moderate joint effusion.

20Overall, I am not persuaded that the medical evidence establishes an exacerbation of the Applicant’s pre-existing conditions. When I consider the evidence, including the significant gaps in reports of pain to the family physician, and the delay in reporting aggravation of any pre-existing conditions, along with the strength of the IE report provided by the Respondent, I find that the Applicant has not established that her pre-existing conditions were exacerbated as a result of the accident, nor that they would prevent maximal recovery of the predominantly minor injuries she sustained in the accident.

Chronic Pain

21The Applicant may also be removed from the MIG if she can demonstrate that she sustained a chronic pain condition causing functional impairment. I have been provided little compelling evidence to indicate the Applicant’s accident-related injuries have had a detrimental effect on her functionality.

22The only mention of chronic pain in the family doctor’s notes is an entry that pre-dates the accident, in 2016 when he noted chronic bilateral foot and knee pain. She had parking permits both pre- and post- accident.

23The Applicant’s first post-accident visit to her family doctor, Dr. Pham, did not occur until December 11, 2018, when she reported the accident a few months prior and complained of neck pain. Tenderness was noted, and her range of motion was normal. No pain medication was prescribed. A year after the accident, in September 2019, she reported on and off lower back pain. No imaging of her back was arranged. There is no reference in the family doctor’s notes with respect to any impairment of her function in these entries. She didn’t report wrist pain and numbness until 2020, and no functional impairments are identified. More than two years post accident in November 2020, she reported low back pain triggered by walking, and in 2021 she reported knee pain aggravated by doing stairs.

24Again, I place weight on the IE report by Dr. R. Zarnett. The Applicant reported pain in her neck, with associated headaches and left wrist pain, and she was taking over the counter medication. She reported having returned to work as a hairdresser within a week and was currently working full time without limitations or restrictions. She was independent with her self-care and had some assistance with heavier housekeeping tasks.

25The Applicant reported to Dr. Dimitrascu in July 2019 that she was taking an anti-inflammatory and Robax or Advil on an as needed basis. The prescription summaries provided don’t contain any entries for pain medication until March 2021 when that she began to fill prescriptions for Diclofenac.

26I find that the Applicant has not demonstrated that she suffers from chronic pain as a result of the accident that has caused functional impairments, such that she should be removed from the MIG.

Psychological Impairment

27Psychological injuries are not included in the minor injury definition. Thus, someone who suffers a psychological injury should not be subject to the MIG and the $3,500.00 funding limit for medical and rehabilitation benefits.

28I find that the Applicant has not demonstrated that she sustained psychological injuries as a result of the subject accident.

29There is no mention of any psychological impairments in any of the family doctor’s notes, nor is there any indication that she was prescribed any medication for any psychological issues.

30I place weight on the psychological IE report prepared by Dr. T. Dimitrascu, dated July 30, 2019. The Applicant reported that she felt down when bothered by pain, but otherwise her mood was normal. She did not describe having any emotional symptoms of a clinical significance. The Applicant’s psychological testing results were suggestive of a tendency to symptoms magnification and were highly inconsistent with the clinical interview results and overall clinical presentation. Testing results on the depression testing administered were within the normal range. Considering her self-report and the objective data, which was suggestive of a tendency to symptoms magnification and inconsistent reporting, Dr. Dimitrascu concluded that the Applicant did not meet the criteria for a psychological disorder, and no impairments were identified.

31I am not persuaded by the Applicant’s social work assessment report prepared by Angela Resko, or the psychiatric assessment, completed by Dr. M. Bismonte in February 2022, over two and a half years post-accident. No objective testing was completed by either assessor, nor any validity testing, and they did not review any collateral information, such as clinical notes and records of the family doctor, unlike Dr. Dimitrascu. The Applicant’s reports are also somewhat inconsistent with each other. The discharge report from the social worker dated February 27, 2022 indicates that she was equipped with the necessary coping strategies and no further counselling was needed, while Dr. Bismonte concluded in her report of February 23, 2022 that the Applicant would benefit from counselling.

32Overall, I am not persuaded that the Applicant’s sustained a psychological impairment that would remove her from the MIG. Her purported psychological complaints, if any, do not amount to more than sequalae of a predominantly minor injury.

33As the applicant has exhausted the monetary limits under the MIG, it is not necessary for me to consider whether the applicant is entitled to the treatment plans in dispute.

Interest

34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable.

Conclusion

35The Applicant sustained predominantly minor injuries as a result of the accident. The Applicant is not entitled to treatment plans outside of the MIG and the $3,500.00 funding limit on treatment for a minor injury.

36Given that no benefits are owed or payments outstanding, no interest is payable.

37The Application is dismissed.