Citation: Ali v. Wawanesa Insurance, 2024 ONLAT 22-012115/AABS

Licence Appeal Tribunal File Number: 22-012115/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:

Uzma Ali

Applicant

and

Wawanesa Insurance

Respondent

DECISION

VICE-CHAIR:

Kevin Kovalchuk

APPEARANCES:

For the Applicant:

Dean Trinetti, Counsel

For the Respondent:

Mark Pascoal, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Uzma Ali, the applicant, was involved in an automobile accident on October 8,2021, 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 her 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 issue(s) in dispute are:

i. Are the Applicants injuries predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?

ii. Is the Applicant entitled to $2,026.55 for chiropractic services proposed by Mackenzie Medical in a treatment plan/OCF-18 (“plan”) dated January 11,2022?

iii. Is the Applicant entitled to $1,620.65 for chiropractic services proposed by Mackenzie Medical in a treatment plan dated February 9, 2022?

iv. Is the Applicant entitled to $1,195.50 ($2,495.50 less $1,300.00 approved) for chiropractic services proposed by McKenzie Medical in a treatment plan dated October 18, 2021?

v. Is the Applicant entitled to $2,894.70 for a Neurological Assessment proposed by Complete Rehab in a treatment plan dated March 8, 2022?

vi. Is the applicant entitled to interest on any overdue payments.

RESULT

3The applicant has not demonstrated that her accident-related injuries warrant treatment beyond the MIG. The applicant is not entitled to the treatment plans in dispute and no interest is payable.

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 $3,500.00.

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

The applicant is not removed from the MIG on the basis of a pre-existing condition.

6I find that the applicant has not proven on a balance of probabilities that she has a pre-existing medical condition that would prevent her from achieving maximal medical recovery within the MIG.

7The applicant relies on section 18(2) of the Schedule in support of her position that she should be removed from the MIG.

8The respondent submits that the applicant has not shown that her pre-existing medical condition would prevent her from achieving maximal medical recovery if she was subject to the $3,500.00 limit under the MIG.

9Section 18(2) of the Schedule sets out the test that the applicant must meet to be removed from the MIG. It is a three-part test:

a) the applicant must have a pre-existing medical condition.

b) the pre-existing condition was documented by a health practitioner before the accident; and

c) the applicant’s treating health practitioner determines and provides compelling medical evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the applicant is subject to the $3,500.00 limit under the MIG.

10The applicant submits that she has a pre-accident medical history of left shoulder pain and migraines. In support of her position the applicant points to the reports of Dr. Lansang (Orthopaedic Surgeon) dated November 30,2018 and December 9,2020.

11In his report dated November 30,2018 Dr. Lansang noted that the applicant presented with left shoulder pain that she had “for about six months”. An ultrasound he reviewed, (he did not provide the date of the ultrasound), suggested some mild tendinopathy subacromial bursitis. He suggested rotator cuff rehabilitation and stretches as well as physio and massage therapy. He suggested anti-inflammatories as directed by the applicant’s family physician. He also administered an injection of 40mg Depo Medrol to the applicants subacromial space.

12The report of Dr. Lansang dated December 9,2020 indicates that he saw the applicant for a left shoulder evaluation. On examination Dr. Lansang found slight tenderness on palpation of the AC joint. He also found impingement “strongly positive”. His assessment noted that the applicant had ongoing inflammation and chronic pain with severe impingement symptoms in the left shoulder.

13In its submissions the respondent referred to Dr. Lansang’s report of December 9, 2020, referencing the doctor’s diagnosis of “chronic shoulder pain with severe impingement symptoms”.

14Pursuant to section 18(2) of the Schedule I find that the applicant has proven on a balance of probabilities that she had a pre-existing medical condition that was documented by a health care practitioner before the accident. I base my finding on the above noted reports of Dr. Lansang dated November 30,2018 and December 9,2020 particularly, the note of December 9,2020 where Dr. Lansang makes a diagnosis of ongoing inflammation and chronic pain with severe impingement symptoms in the applicant’s left shoulder.

15The applicant submits that the medical records of Drs. Shaikh, Lansang, Shaheen, Bajaj and Dodig all support the applicant’s position that her pre-existing medical condition would prevent her from achieving maximum recovery if she was subject to the $3,500.00 limit under the MIG.

16The respondent submits that the applicant has not shown that her pre-existing medical condition would prevent her from achieving maximum medical recovery if she was subject to the limits under the MIG.

17I agree with the respondent. I have reviewed the medical records of Drs. Shaikh, Lansang, Shaheen, Bajaj, and Dodig. They do not provide any compelling medical evidence that the applicant’s pre-existing medical condition would prevent her from achieving maximum recovery if she was subject to the $3,500 limit under the MIG, nor did the applicant point me to any such evidence. Because the applicant has not provided the compelling medical evidence, required by Section 18(2) of the Schedule, I find that she has not met the third part of the test set out in section 18(2). As a result, she is not removed from the MIG on the basis of a pre-existing condition.

The applicant is not removed from the MIG on the basis of chronic pain.

18The applicant has not proven on a balance of probabilities that she suffers from a chronic pain condition that would remove her from the MIG.

19The applicant submits that she should be removed from the MIG because of chronic pain. In support of her submission, she relies upon a diagnosis of chronic pain made by a pain specialist, Dr. Bajaj on February 16,2022.

20The applicant submits that she has consistently reported her ongoing physical pain to her family doctor and chronic pain specialist over the years since the accident. She submits that she has relied on pain medications and nerve block injections on an almost weekly basis since February of 2022, and that her ability to have any level of functionality on a day-to-day basis is entirely dependant on nerve block injections and pain medications. Further, the applicant submits that she has returned to work out of financial need but is limited in all other aspects of her life.

21The respondent submits that prior LAT decisions have referred to the 6th Edition of the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment (the “Guides”) when assessing whether an applicant suffers from chronic pain. The respondent submits that the applicant must meet at least three of the six criteria set out in the Guides to support a diagnosis of chronic pain.

22The six criteria are as follows:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

ii. Excessive dependence on health care providers, spouse, or family

iii. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain.

iv. Withdrawal from social milieu, including work, recreation, or other social contacts.

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs; and

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or non-organic illness behaviors.

23The respondent submits that there is no evidence that the applicant suffered any accident related psychological sequalae or withdrew from social milieu such as work, recreation, or other social contacts. The respondent further submits that the applicant continued to work post accident which the respondent submits suggests that the applicant has not suffered secondary physical deconditioning and has resumed her pre-injury physical function to at least a reasonable degree.

24The applicant has submitted the medical records of Dr. Shaikh and her family doctor Dr. Shaheen for the period from July 27,2021 to February 8,2022 in support of her position that she suffers from chronic pain. Dr. Shaikh’s records dated October 9,2021, October 13,2021 and October 17,2021 record that, objectively, the applicant was in no acute distress when she saw Dr. Shaikh on those dates. The record of Dr. Shaheen dated December 1,2021 notes a soft tissue injury to the applicant’s shoulder and neck. On February 2, 2022, Dr. Shaheen referred the applicant to Dr. Bajaj a pain specialist. Dr. Shaheen made a diagnosis of soft tissue injury.

25These records show complaints of neck shoulder and back pain. They do not record that the applicant sustained any functional impairment or disability as a result of the accident.

26I have reviewed the medical records of Dr. Bajaj submitted by the applicant. They cover the period February 16, 2022, to June 17, 2023. They reveal that the applicant attended at Dr. Bajaj’s office on an almost bi-weekly basis for nerve block injections. These records do not record that the applicant sustained any functional impairment or disability because of the accident. From February 16, 2022, until December 10, 2022, the applicant consistently reported to Dr. Bajaj that the pain “sometimes” wakened her from her sleep but that she would change positions and go back to sleep. From December 31,2022 to June 17, 2023, she consistently reported that her sleep was better. The records of Dr. Bajaj note that the applicant was working. They note that the applicant did not report any psychosocial factors such as depression, anxiety, catastrophizing, or financial concerns. The records also note that the applicant was doing neck exercises that she learned from her physiotherapist.

27On May 13,2023, Dr. Bajaj noted that ultrasounds of the applicants left shoulder done in October 2021, November 2022 and April 2023 showed no abnormality or tear. He further noted that an x-ray of the applicant’s left shoulder done in October of 2021 was normal and that MRIs of the applicant’s head done in 2020 and of her cervical spine done in April of 2023 were normal. Dr. Bajaj referred the applicant to Dr. Dodig a neurologist for EMG testing. In a report to Dr. Bajaj dated April 13, 2022, Dr. Dodig reported that EMG testing of the applicant’s left arm was unremarkable.

28I agree with the applicant that a diagnosis of chronic pain can be grounds for removal from the MIG.

29However, I find that a chronic pain diagnosis by itself does not remove the applicant from the MIG. Chronic pain must be of such a severity that it causes suffering and distress accompanied by functional impairment or disability. Muhyidin v. Aviva Insurance Canada 2024 CANLII 2625 (ON LAT).

30The AMA Guides’ six criteria for chronic pain were not incorporated into the Schedule and are not binding on this Tribunal however, this Tribunal has consistently considered them a useful interpretive tool for assessing chronic pain in accident benefits cases.

31I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain as a result of her motor vehicle accident, warranting her removal from the MIG, because the medical reports she has submitted do not show that her pain is of such a severity that it causes functional impairment or disability.

32There is no objective evidence of an injury to the applicants left shoulder or neck. Three ultrasounds and an x-ray showed no abnormality or tear in the left shoulder. An MRI of her cervical spine done in April of 2023 was reported as normal by Dr. Bajaj. EMG testing by Dr. Dodig was reported as normal.

33The applicant has not pointed me to any evidence that she has sustained any secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain. As submitted by both the applicant and the respondent and confirmed by Dr. Bajaj the applicant is working. I agree with the respondent that this suggests that the applicant has not sustained any secondary physical deconditioning. As well Dr. Bajaj reports that the applicant was doing neck exercises that she learned from her physiotherapist. This suggests that the applicant has not suffered a loss of function in her neck.

34The applicant did not point me to any evidence in support of her submission that she has returned to work out of financial need.

35The applicant has not pointed to any evidence that she developed any psychosocial sequelae after the accident. The records of Dr. Bajaj consistently report that the applicant did not display any psychosocial factors such as depression, anxiety, catastrophizing, or financial concerns.

36The applicant did not point me to any evidence that she has withdrawn from social milieu including work, recreation, or other social contacts or that her physical capacity is insufficient to pursue work, family, or recreational needs. In fact, the evidence shows that she is working.

37The applicant has not proven on a balance of probability that she meets at least three of the six of the criteria set out in the AMA Guides that this Tribunal has consistently considered as a useful interpretive tool for assessing chronic pain in accident benefits cases.

38Based on the above I am not convinced on a balance of probabilities that the applicant suffers from chronic pain with functional impairment because of the accident.

39The applicant is not entitled to the disputed treatment plans because I have determined that the applicant is subject to treatment within the monetary limits of the MIG. However, as the parties have not informed the LAT that the limits of the MIG have been exhausted the applicant is entitled to any remaining amount left in the MIG.

Interest

40As there are no benefits payable there is no interest owing on any overdue payment of benefits.

ORDER

41As a result of the above and on a balance of probabilities I find that:

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

ii. As I have found the applicant’s injuries to be subject to treatment within the MIG it is not necessary for me to determine whether the disputed treatment plans are reasonable and necessary. The applicant is entitled to treatment up to the MIG limit.

iii. As there are no outstanding benefits or overdue payments the applicant is not entitled to interest

iv. The application is dismissed.