Aaron v. Wawanesa Insurance, 2024 CanLII 102129

Citation: Aaron v. Wawanesa Insurance, 2024 ONLAT 22-012232/AABS

Licence Appeal Tribunal File Number: 22-012232/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:

Leroy Aaron

Applicant

and

Wawanesa Insurance

Respondent

DECISION

VICE-CHAIR:

Kevin Kovalchuk

APPEARANCES:

For the Applicant:

Todd A Reybroek, Counsel

For the Respondent:

Gabrielle Nigro Counsel

HEARD:

In Writing

OVERVIEW

1Leroy Aaron, the applicant, was involved in an automobile accident on January 20, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant applied for medical benefits that were denied by the respondent, Wawanesa Insurance as it determined that his injuries were subject to the Minor Injury Guideline (the ‘MIG”). The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in Section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit? Note: The parties agree that the MIG limits have been exhausted.

2. Is the applicant entitled to services proposed by HydroActive Aquatherapy and Rehabilitation, (“HydroActive”) as follows:

a) $2,409.20 ($3,169.29 less $760.09 approved) for physiotherapy services in a plan dated December 29, 2021 and denied January 14, 2022; and

b) $2,756.69 for chiropractic and massage therapy services in a plan dated January 22, 2022, and denied February 8, 2022?

3. Is the applicant entitled to $2,486.00 for a psychological assessment proposed by MediAssess Evaluations Inc. in a treatment plan dated October 20, 2021, and denied December 2, 2021?

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

RESULT

3Based on the totality of the evidence before me, I find:

1. The applicant sustained predominantly minor injuries as defined in the Schedule and thus he is subject to treatment within the monetary limits of the MIG.

2. The applicant is not entitled to any of the disputed benefits.

3. As there are no overdue benefits payable the applicant is not entitled to interest.

ANALYSIS

Applicability of the Minor Injury Guideline:

4The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 (1) of the Schedule 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. The terms, “strain, sprain, subluxation and whiplash associated disorder” are also defined in section 3(1). Section 18 (1) limits recovery for medical and rehabilitation benefits for such injuries to $3500.00.

5The applicant bears the onus of establishing on the balance of probabilities his entitlement to coverage beyond the $3,500.00 cap for minor injuries.

6The applicant submits that he has sustained a non-minor injury based on his chronic pain and psychological injuries. The applicant submits that he currently suffers from back pain, left shoulder pain, right leg pain, headaches, neck pain and PTSD.

7The respondent submits that the applicant has never been diagnosed by a physician or pain specialist with chronic pain. The respondent further submits that there is no corroborating evidence of any accident-related psychological condition.

The applicant does not have a chronic pain condition that would remove him from the MIG.

8I find that the applicant has not persuaded me on a balance of probabilities that he suffers from chronic pain in order to be removed from the MIG.

9The applicant submits that his accident-related physical pains have become chronic as they have been ongoing for approximately 3 years. He submits that he has reported these ongoing physical pains to his family doctor over the years and has relied on prescription pain medication to obtain relief. He submits that his family doctor has recommended that he continue to obtain physical therapy for the pain. He further submits that the record of HydroActive dated December 29, 2021 notes that his pain has become chronic. He points to this record of HydroActive in support of his submission that he suffers from chronic pain.

10I have reviewed the record of HydroActive dated December 29, 2021. It is entitled “Initial Examination” and signed by a Dr. David Huang D.C. On page 11 of the record under the heading “Diagnostic Impression”, it notes; “cervical sprain chronic, thoracic spine chronic and lumbar spine chronic”. Dr. Huang recommends treatment with aquatherapy one to two times per week for six to eight weeks.

11An OCF-18 Treatment Plan, dated December 29, 2022, signed by Dr. Huang was submitted to the respondent. It recommended aquatherapy and rehabilitation in the amount of $3,162.92. The respondent partially approved $760.09 of the Treatment Plan.

12The applicant submitted, and I have also reviewed the clinical notes and records of the applicant’s family doctor Dr. Ismeal. There are notes dated February 18, 2021, July 20, 2021, October 14, 2021, November 1, 2021, June 23, 2022, July 6, 2022, and October 22, 2022. There is no mention in the above noted clinical notes and records of Dr. Ismeal of a diagnosis of chronic pain or any significant functional impairment.

13The respondent provided, in addition to the clinical notes and records of Dr. Ismeal provided by the applicant, a note of Dr. Ismeal dated January 7, 2023. I have reviewed this note and could find no reference to a diagnosis of chronic pain or significant functional impairment.

14Further, a Functional Abilities form completed by Dr. Ismeal on June 23, 2022, for the WSIB and provided by the respondent indicates that the applicant is capable of returning to work with restrictions. The abilities listed were walking 100 to 200 meters, standing 15 to 30 minutes, sitting 30 minutes to an hour, lifting 5 to 10 kilograms from floor to waist, lifting 5 to 10 kilograms from waist to shoulder, climbing up to 5 steps, ladder climbing 1 to 3 steps and the ability to use public transit. The restrictions listed were bending/twisting, limited pushing, operating motorized equipment (e.g., forklift) and exposure to vibration. Dr. Ismeal noted that the above restrictions would apply for approximately three to seven days from the date of the assessment.

15The respondent referred to the case of 17-007825 v Aviva Insurance Canada, 2018 CanLII 59515 (ON LAT), where the Tribunal confirmed that chronic pain is a severe debilitating condition distinct from ongoing or recurring pain. The respondent also referred to the case of Castillo v TD General Insurance Company, 2021 CanLII 18907 (ON LAT), where the Tribunal reiterated that a certain degree of pain can be expected as a clinically associated consequence of minor, soft tissue injuries. However, to take the applicant out of the MIG, an applicant must demonstrate that they suffer from functionally disabling pain.

16I agree with the respondent’s position and the case law it relies upon for the following reasons:

17First, the notes of Dr. Ismeal do not reveal any functionally disabling pain or impairment from ongoing or recurrent pain.

18Second, the report of HydroActive dated December 29, 2021 is not sufficient evidence on its own in support of the applicant’s submission that his injuries have become chronic and that he suffers from chronic pain. It is an initial assessment. It noted that the plaintiff was employed in construction and returned to modified duties after the accident. It did not note any emotional disturbances such as fear of driving, fear of riding in a vehicle, stress, sleep disturbances, depression, nervousness, or anxiety. The report indicated that the applicant should undergo treatment “1-2 times a week for 6-8 weeks”. I find that the report does not show that the applicant suffers from functionally disabling pain as is required to be removed from the MIG.

19Third, I could find no compelling evidence from a medical practitioner in the applicant’s submissions that his accident-related injuries are chronic and ongoing or that the applicant suffers from functionally disabling pain that would be sufficient to remove him from the MIG.

The applicant does not have a psychological injury that would remove him from the MIG.

20The applicant relies upon the psychological pre-screen assessment of MediAssess Evaluations dated October 20, 2021 in support of his position that his psychological injuries remove him from the MIG. A review of the pre-screen assessment reveals that a provisional diagnosis was made based solely on the applicant’s self-reporting. In the pre-screen assessment the applicant reported that he continues to experience impairment of sleep, symptoms of depression, anxiety around driving and being a passenger and difficulty with motivation and energy levels.

21In my view, the psychological pre -screen assessment of MediAssess Evaluations dated October 20, 2021 is not sufficient evidence on its own in support of the applicant’s submission that his psychological injuries remove him from the MIG. The weakness of the pre-screen assessment is that it is based solely on the applicant’s self-reporting. In addition, the assessment makes a provisional diagnosis. There must be contemporaneous evidence supporting a psychological impairment. The applicant has not directed me to any contemporaneous evidence that he sustained a psychological impairment because of the accident. There must also be some corroborating evidence. I note there are no psychological issues raised by the applicant during any of the visits to his family doctor, Dr. Ismeal. A clinical note of Dr. Ismeal dated January 7, 2022, provided by the respondent reads “psychiatric – mood and affect normal”.

22Because the applicant’s evidence is based on self-reporting and because I was not directed to any contemporary or corroborating evidence that the applicant has sustained a psychological injury, I find that the applicant has not persuaded me on a balance of probabilities that he suffers from a psychological impairment, which would be sufficient to remove him from the MIG.

None of the treatment plans are payable.

23As I have determined that the applicant is subject to treatment within the monetary limits of the MIG and that the parties have agreed that the MIG limits have been exhausted there is no need for me to deal with the treatment and assessment plans as no funding for any of them would be available.

No interest is payable.

24As no benefits are overdue no interest is payable.

ORDER

25As a result of the above and on a balance of probabilities I find that:

1. The applicant sustained predominantly minor injuries as defined in the Schedule and is therefore subject to treatment within the monetary limits of the MIG.

2. The applicant is subject to treatment within the monetary limits of the MIG. Because the parties have agreed that the MIG limits have been exhausted the applicant is not entitled to any of the disputed treatment and assessment plans.

3. As there are no overdue benefits payments the applicant is not entitled to interest.