Citation: Yoganathan vs. Wawanesa Mutual Insurance Company, 2024 ONLAT 22-002426/AABS

Licence Appeal Tribunal File Number: 22-002426/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:

Diana Yoganathan

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

John Mazzilli

APPEARANCES:

For the Applicant:

Angela Chui, Paralegal

For the Respondent:

Joseph Tumini, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Diana Yoganathan, (“applicant”) was involved in an automobile accident on January 2, 2020, 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 (“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 s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to $ 2,551.72 for physiotherapy treatment, proposed by Pro Life Wellness in a treatment plan (OCF-18) dated April 8, 2021?

iii. Is the applicant entitled to $2,200.00 for psychological treatment, proposed by Pro Life Wellness in a treatment plan (OCF-18) dated May 21, 2021?

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

RESULT

3The applicant remains in the MIG and is not entitled to the disputed OCF-18s.

4As the MIG limits have been exhausted, none of the disputed benefits are payable or overdue, and consequently interest is not payable.

ANALYSIS

Applicability of the MIG

6I find the applicant has failed to demonstrate she should be removed from the MIG.

7Section 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.” The applicant may be removed from the MIG if she can establish that her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if she is 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.

8The applicant submits that removal from the MIG is warranted because of chronic pain in her back, legs, and shoulders, due to trauma to her sacroiliac joint and progressing spondylosis (a condition involving the slipping of vertebrae) causing her pain including sciatic nerve pain down her legs, vertebrae, and bony tissue. She argues that continued physiotherapy as proposed in the treatment plan would help manage her pain. The applicant also submits that she should be removed from the MIG on the basis of psychological impairments and that a proposed psychological treatment plan would help her with her isolated phobia, moderate depressive episode and adjustment disorder that she has been suffering from because of the motor vehicle accident. The applicant relies on the clinical notes and records of Dr. Choi-Fung (family doctor), Dr. Mrahar (psychologist), Pro Life Wellness Centre Dr. Nolan (chiropractor), Lakeridge Health Ajax Pickering Hospital, and Dr. Chen (physiatrist).

9The respondent argues that the medical evidence does not establish that the applicant suffers from chronic pain disorder or a psychological impairment because of the motor vehicle accident, and therefore she should remain in the MIG, and the proposed treatment plans are not reasonable or necessary. The respondent submits that the accident was minor in nature and there were very minor surface scratches to the applicants rear bumper. Further the respondent submits that the applicant returned to work at her pre-accident employment almost immediately after the accident and that she was laid off due to the Covid-19 pandemic and that she is a fulltime caregiver for her three children and has maintained her pre-accident functionality. The respondent relies on s. 44 insurer’s examinations (the “IE’s”) of Dr. Alfonse Marchie (physiatrist) and Dr. Gary Challis (psychologist) and the clinical notes and records of Dr. Choi-Fung (applicant’s family doctor) along with the clinical notes and records of Pro-Life Wellness Centre.

Chronic pain

10I find that the applicant has not established that she suffers from accident- related chronic pain.

11A formal diagnosis of chronic pain syndrome is not required to remove an applicant from the MIG. If the medical documentation persuasively shows regular, consistent self-reporting of pain for a significant period of time, with interference in pre-accident work, housekeeping, social, recreational and other activities of daily living with significant functional impairment, that may be sufficient to establish that her injury is not predominantly minor.

12The applicant submits that the medical evidence clearly demonstrates that she suffers from chronic pain in her lower back, right hip/groin and along with clicking when walking as well as weakness in her knees. She submits that she has difficulty with activities requiring sitting, walking, bending, getting up from a seated position and prolonged postures as a direct result of the subject accident. The applicant relies on the clinical notes and records of Dr. Choi-Fung (family doctor), Dr. Mrahar (psychologist), Pro Life Wellness Centre Dr. Nolan (chiropractor), Lakeridge Health Ajax Pickering Hospital, and Dr. Chen (physiatrist)

13The respondent submits that in order to diagnose chronic pain under the AMA Guides, at least three of the following criteria must be met: dependency on prescription drugs or other substances; excessive dependence on health care providers or family; secondary physical deconditioning due to disuse or fear avoidance; withdrawal from social milieu; failure to restore to pre-injury function; and development of psychosocial sequelae. The respondent relies on s. 44 insurer’s examinations (the “IE” s) of Dr. Alfonse Marchie (physiatrist) in support of its submission that those criteria have not been met.

14Although the AMA Guides’ passages on chronic pain are not binding on this Tribunal, they have been consistently applied as a useful tool in deciding whether an insured person has this condition.

15The applicant’s evidence fails to point me to compelling medical evidence of impairment arising from accident-related chronic pain. This is corroborated by the large gaps in medical treatment specifically relating to her self-reported symptoms. Furthermore, Lakeridge Health’s emergency department clinical notes show the applicant complained of left leg numbness and paresthesia in the context of chronic back pain; however, the compelling medical evidence from this visit was that there are no red flag features, no central cause and she was prescribed Lyrica and Flexeril as recommended treatment. Pharmacy records show that she had filled only one prescription for the above noted pharmaceuticals on June 29, 2022. It is unclear to me as to why only one prescription has been filled but on a balance of probabilities, I conclude that the medication is either not effective or not needed. I also conclude that she favors the family doctor’s treatment of Tylenol as needed since the motor vehicle accident approximately two-and-a-half years ago.

16On May 10, 2021, the applicant attended a s. 44 (IE) assessment conducted by Dr. Marchie (physiatrist) in relation to the OCF-18 submitted by Kanica Berry (physiotherapist) and Dr. Nolan (chiropractor) at Pro Life Wellness Centre. Dr. Marchie opined that, from a musculoskeletal perspective, the applicant sustained soft tissue injuries to her SI joint area as a direct result of the subject motor vehicle accident. During the physical examination, she also demonstrated signs of possible right meralgia paresthetica, which Dr. Marchie does not believe is accident related. Dr. Marchie opined that approximately one year and four months after the accident the applicant should have recovered from the soft tissue injuries to her lower back and that there were no documented pre-existing conditions in the medical records that would prevent her from achieving maximum medical recovery. Dr. Marchie did not diagnose her with chronic pain and did not find a functional impairment that would warrant the applicant being removed from the MIG. Further the applicant reported that she was asked to return to her full-time job; however, she opted to stay home with her three children as she did not feel it was safe for them to attend school in person due to Covid-19.

17On January 21, 2022, the applicant was referred to Dr. Chen (psychiatrist) for an EMG and neurological exam by her family doctor. Dr. Chen opined that the applicant self-reports a chronic pain condition and that her pain may be more musculoligamentous in etiology as it was aggravated by right hip and knee joint stretches. Manual muscle testing showed grade five strength in all major muscle groups of lower limbs, including hip, knee, and foot muscles. Her EMG and neurological exam were normal, except subjective right leg numbness. No acute bony deformity was palpated at her right knee and leg. Dr. Chen noted that the applicant had not attended any physiotherapy sessions for the previous two years due to the pandemic and recommended additional physical therapy and noted that self directed exercises should be performed on an ongoing basis as they can improve muscle flexibility leading to better pain tolerance. A formal diagnosis of chronic pain was not provided.

18I agree with the respondent that there is no evidence of excessive dependence on health care providers or family. This is corroborated by the large gaps in medical treatments and the lack of dependence on prescription drugs. Although I accept that she suffers from some pain, the medical evidence does not satisfy me that she has a functional impairment arising from the motor vehicle accident or a pre-existing condition that would warrant removal from the MIG. Dr. Chen’s manual muscle testing showed grade five strength in all major muscle groups of the lower limbs, including hip, knee, and foot muscles. Subjective right thigh and shin dysesthesia was reported. Gait was independent and unremarkable, including the stance and swing phases. Dr. Challis, psychologist, reported that the applicant’s primary impairment to work was the fact that she wanted to keep her children home and safe during the pandemic and that once the restrictions were lifted that she wished to return to work, which I understand she has as of the time of this hearing. Therefore, I am not satisfied that the applicant has established that she has met the threshold of the AMA Guides of having at least three criteria met to establish chronic pain with functional impairment that would warrant a removal from the MIG.

Psychological Impairment

19I find that the applicant has not established that she suffers from a psychological impairment because of the motor vehicle accident.

20A person who has sustained a psychological impairment may be removed from the MIG as it does not fall within the definition of “minor injury”, but the applicant must prove that she has more than just sequelae or symptoms arising from any accident-related injury. It must be an actual psychological impairment.

21The applicant submits that because of the motor vehicle accident she has become depressed and cannot complete household chores or go to work as she did pre-accident. She feels tired, weak, lacks motivation and has withdrawn from her daily activities and interactions. She submits that her physical pain is disrupting her sleep. She refrained from driving alone except for local trips out of fear and care for her children as she used to prior to the motor vehicle accident. She reports not being able to engage in the same activities with her children post accident as she enjoyed pre-accident. Dr. Mrahar (psychologist) at Pro Life Wellness Centre conducted a psychological pre-screen of the applicant and provided a provisional diagnosis of 1) situational (isolated phobia) driver, 2) moderate depressive episode, and 3) adjustment disorder (with anxiety). Dr. Mrahar recommended a psychological assessment in the OCF-18 dated May 21, 2021, to be conducted by him.

22The respondent argues that there is no compelling evidence of a psychological injury that would warrant the applicant from being removed from the MIG as a direct result of the motor vehicle accident. The respondent argues that the applicant can work, drive, spend time with her children and carry on household tasks. They further submit that the applicant can drive with very little anxiety and that no medication has been prescribed to her by any treating physician that would help deal with any of the psychological symptoms that she is reporting. The respondent further submits that the applicant does not present any symptoms that would be associated with post traumatic stress disorder. The respondent relies on s. 44 assessments from Dr. Challis (psychologist) and Dr. Marchie (physiatrist), CNRs of the applicant’s family physician Dr. Choi Fung and CNRs of Dr. Mrahar (psychologist).

23I agree with the respondent. I am not persuaded by the psychological pre-screen interview conducted by Dr. Mrahar that the applicant’s psychological complaints were because of the motor vehicle accident. I found Dr. Challis’ psychological assessment to be more in-depth as he administered several testing parameters which included the Beck Anxiety Inventory (BAI), the Beck Depression Inventory (BDI-II) and the Pain Patient Profile (P3) tests. Further He found that the applicant had chosen to stay home from work voluntarily during the Covid-19 pandemic so that she could be with her children. He did not find any indication of either a depressive episode or adjustment disorder symptoms as a direct result of the accident and concluded that an assessment for the purpose of treating was not required. Dr. Challis concluded that the applicant continues to drive with only mild anxiety and that from a psychological perspective, he had no treatment recommendations. The applicant is not removed from the MIG based on psychological impairments.

The OCF-18s in dispute

24The applicant remains in the MIG and as the MIG limits are exhausted, an analysis of the reasonableness and necessity of the disputed treatment plans is not required.

Interest

25There are no benefits overdue in this case, so interest does not apply.

ORDER

26The applicant remains in the MIG and is not entitled to the disputed OCF-18s. The application is dismissed.