Vitor De Melo v. Wawanesa Mutual Insurance Company, 2023 CanLII 56142

21-002545/AABS

Licence Appeal Tribunal File Number: 21-002545/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:

Vitor De Melo

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Lyle Miller, Counsel

For the Respondent: Colleen J. Mackeigan, Counsel

HEARD: By way of written submissions

OVERVIEW

1Vitor De Melo, the applicant, was involved in an automobile accident on April 8, 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 limit and in the Minor Injury Guideline (MIG)?

ii. Is the applicant entitled to $4,860.34 for chiropractic services, proposed by Essential Physio Rehabilitation Inc. in a treatment plan/OCF-18 (“plan”) submitted August 13, 2019?

iii. Is the applicant entitled to $2,000.00 for a Psychological Assessment, proposed by Excel Medical Diagnostics Inc. in a treatment plan submitted November 13, 2020?

iv. Is the applicant entitled to $2,460.00 for a Chronic Pain Assessment, proposed by Essential Physio Rehabilitation Inc. in a treatment plan submitted July 11, 2019?

v. Is the applicant entitled to $1,998.00 for an Orthopaedic Assessment, proposed by Essential Physio Rehabilitation Inc. in a treatment plan submitted September 10, 2019?

vi. Is the applicant entitled to $14,029.19 for a Chronic Pain Management Program, proposed by Excel Medical Diagnostics Inc. in a treatment August 13, 2021?

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

RESULT

3The MIG limits apply, and the applicant is not entitled to any of the disputed treatment plans or interest.

ANALYSIS

The applicant has not proven an injury which warrants removal from the MIG

4Section 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.”

5An 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.

6The applicant submits that they should be removed from the MIG due to chronic pain and a psychological impairment.

7The applicant saw their family physician, Dr. C. Dragomir, on April 22, 2019. Dr. Dragomir notes that the applicant visited a walk-in clinic following the accident and has started treatment with a chiropractor for neck pain. This note is the sole clinical note submitted from Dr. Dragomir as evidence.

8Additional records were submitted from Dr. Dragomir from September 20, 2019. These records comprise a referral for psychological services. However, these records hold little weight as they fail to provide a causal link between the accident and the psychological symptoms. All these records indicate is that the applicant had noted psychological symptoms and that the applicant would benefit from a psychological assessment or treatment.

9The applicant also submitted the clinical notes and records of the initial assessment with Essential Physio and Rehabilitation, both for physiotherapy and chiropractic treatment. However, these records only detail the initial assessment and no ongoing progress, diagnosis or treatment. This assessment did not provide a diagnosis, only refers to ‘an OCF’. The OCF-3 completed by Dr. Narula (chiropractor), which I assume is what is referenced, lists the diagnoses as:

i. Whiplash Associated Disorder;

ii. Injury of muscle and tendon at neck level, thorax level and abdomen, lower back and pelvis;

iii. Sprain and strain of sacroiliac joint – left;

iv. Lateral epicondylitis – right;

v. Sprain and strain of wrist – right;

vi. Sprain and strain of knee – right;

vii. Headache;

viii. Anxiety disorder, unspecified; and

ix. Nervousness

10All of these diagnoses refer to injuries or sequalae covered by the MIG. With reference to the anxiety disorder and nervousness being interpreted as a psychological impairment, there is not a sufficient clinical backing to those diagnoses to warrant removal from the MIG.

11The last piece of medical evidence submitted by the applicant is a Chronic Pain Assessment performed by Dr. S. Brown (anesthesiologist) on January 29, 2021, who found that the applicant is suffering from chronic pain syndrome, chronic pain – lumbar spine, chronic pain – cervical spine, chronic headache and sleep disorder.

12The report does not indicate what documents were provided for review. This contrasts with the section 44 physiatrist’s assessment submitted by the respondent. The respondent’s assessment was conducted on June 21, 2021, by Dr. F. Ismail, who authored a report. In Dr. Ismail’s report, he outlined 198 documents which were reviewed as part of his assessment. While Dr. Brown refers to the aforementioned CNRs of Dr. Dragomir from April 22, 2019, in his report, there is no evidence that any other documents were reviewed. Without the context provided by the applicant’s medical file, I assign less weight to Dr. Brown’s opinion and prefer the report of Dr. Ismail who found there was no objective evidence of an accident-related musculoskeletal or neurological impairment.

13The documents noted above are the sole pieces of clinical evidence submitted by the applicant to justify removal of the MIG limits.

14The applicant has not provided any proof of a psychological condition, only evidence that a referral was made for a psychological assessment. This does not satisfy the burden for removal from the MIG.

15On the issue of chronic pain, the applicant submits the report from Dr. Brown. However, this report, which was prepared for the purposes of litigation by the proposed provider of treatment in dispute, is not corroborated by any objective evidence. There are no clinical notes submitted as evidence that detail the applicant’s journey to recovery. There is no evidence of the applicant presenting with symptoms of chronic pain to either his rehabilitation team or family physician.

16The applicant has not met the burden of proof required to warrant removal from the MIG limits as a result of chronic pain or a psychological impairment.

There is no entitlement to the disputed treatment plans or interest

17As 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 dispute treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG have been exhausted.

18As there are no benefits owing, no interest is payable.

ORDER

19I find:

i. The applicant is subject to the limits of the MIG;

ii. There is no entitlement to any of the disputed treatment plans or interest; and

iii. The application is dismissed.