Citation: Hanna v. Wawanesa Mutual Insurance Company, 2023 ONLAT 21-001172/AABS

Licence Appeal Tribunal File Number: 21-001172/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:

Dani Hanna

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION AND ORDER

VICE-CHAIR: Chloe Lester

APPEARANCES:

For the Applicant: Matthew D Reid, Counsel

For the Respondent: Colleen Mackeigan, Counsel

HEARD: By Way of Written Submissions

REASONS FOR DECISION

BACKGROUND

1The applicant was in an automobile accident on November 12, 2016. He sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)(“Schedule”)¹. Based on the applicant’s injuries sustained in the car accident, the respondent classified them as being minor. Once the submitted treatment plans were above the $3,500.00 funding limits, they were denied. The applicant then submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”)² for dispute resolution.

ISSUES IN DISPUTE

2The issues in dispute for this hearing are:

a. 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”)?

b. Is the applicant entitled to a chiropractic treatment plan in the amount of $1,096.00?

c. Is the applicant entitled to interest on the overdue payment of benefits? Is the respondent liable to pay an award under Regulation 664³ because it unreasonably withheld or delayed payments?

RESULTS

3The applicant’s injuries are considered minor. He is not entitled to the treatment plan, interest or an award.

MINOR INJURIES

4Section 3(1) of the Schedule defines “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 injury.” Section 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 minor injuries.

5Individuals may be entitled to greater funding limits above the $3,500.00 limit if they can establish that their accident-related injuries are not minor 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 funding limits.

6The Tribunal has also determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG.

7In all cases, the burden of proof lies with the applicant demonstrating on a balance of probabilities, that the injuries are not minor and that he is entitled to the treatment plans being recommended.⁴

ANALYSIS

8In this case, the applicant claims he had pre-existing back pain and multiple sclerosis (MS) and that failure to receive additional treatment could impact the disease’s current state of remission. The applicant also argues that he was diagnosed with a concussion, soft tissue injuries, and an adjustment disorder with anxiety. He submits that he currently experiences daily headaches, neck and back pain, and anxiety.

9The applicant relies on records from his family physician, hospital records, chiropractic treatment records and a physician assessment.

10The respondent argues the applicant has not met his onus to prove that his injuries are not minor. The respondent argues the applicant’s MS has been in remission for years and there has been no change since the accident. The respondent argues there is only one pre-accident medical record that indicates some low back pain, but after the accident, there were no indications of changes and the applicant reported to various practitioners that he was feeling well. The respondent argues that the reports from the applicant’s treating chiropractor elaborating on the functional limitations that the applicant is allegedly facing are not supported by the clinical records.

11I find the applicant has minor injuries and is subject to the $3,500.00 funding limit for the following reasons.

12The applicant claims he has a pre-existing condition of MS and based on the assessment of Dr. Brown, physician, a failure to have additional treatment might cause his MS to relapse. I find there is no evidence to support that conclusion. I find the evidence from the applicant’s treating practitioner portrays quite a different story. The records indicate there were no changes to his MS after the accident and he reports there were improvements in his life.⁵

13The applicant also claims that he had pre-existing back pain which should cause his injuries to fall outside the definition of minor injuries. The applicant relies on the records from 2014 from his family physician and treating chiropractor. The family doctor’s records indicate the applicant had low back pain and the chiropractor’s records indicate back tension. I have very few records from the year prior to the accident. I also have very few records in the two years following the accident. The s. 44 assessment by Dr. Bhardwaj, physiatrist, indicated that the applicant saw his chiropractor every few weeks before the accident and continued to see him every few weeks after the accident. I have no evidence that the frequency or impairments changed after the accident. I also do not have any chiropractor records from that period to support the applicant’s claims.

14Next, I find that on a balance of probabilities, the applicant does not have a psychological diagnosis or a concussion resulting from the car accident.

15The applicant relies on Dr. Brown’s assessment. She states in her report that the applicant was experiencing anxiety symptoms which resulted in an emergency room visit in 2017. Based on her assessment, Dr. Brown diagnosed the applicant with adjustment disorder with anxiety. I find the applicant does not have a psychological disorder resulting from the accident. The evidence linking the disorder to the accident is lacking. In fact, the records from the hospital demonstrate that the symptoms of anxiety were because of the stress relating to a new baby, a busy job, and renovations. Other than a few self-reports to Dr. Brown that the accident-related lawsuit is causing the applicant some stress, there is no evidence that the applicant’s adjustment disorder results from the car accident.

16I find the applicant does not have a concussion because of the accident. As indicated earlier, there are virtually no records for the two years following the accident. The chiropractic records in 2018 indicate complaints of back pain but no reports of headaches. It is not until 2019-2020 that the applicant reports headaches which increased to migraines by 2020.⁶ Since I have no records from the time of the accident and a few years after, I cannot conclude that the applicant suffered a concussion as a result of the accident. I also am persuaded by the applicant’s reports to his treating neurologist that he does not have any limitations, there have been no changes to his health, and he is active with his kids.⁷

17The applicant has not proven that he has sustained injuries outside the MIG.

CONCLUSION

18The applicant’s injuries are considered minor. Since the $3,500.00 funding limits have been exhausted, he is not entitled to any more funding for treatment plans. Since no benefits are owed, he is not entitled to interest or an award.

19The application is dismissed.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 as amended. (“Schedule”)
2. 2Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”)
3. 3R.R.O. 1990, Reg. 664: AUTOMOBILE INSURANCE
4. 4Respondent relies on El-Saikali v. Co-Operators General Insurance Co., [2003] O.F.S.C.I.D. No. 35 and Scarlett v Belair Insurance, 2015 ONSC 3635
5. 5London Health Sciences Records – respondent’s brief page 25-29
6. 6Family GP records August 21, 2019 and October 5, 2020.
7. 7Applicant’s brief Tab 17 – London Health Sciences Records May 6, 2021