Citation: Lee v. Wawanesa Insurance, 2024 ONLAT 21-006386/AABS

Licence Appeal Tribunal File Number: 21-006386/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:

Natasha Lee

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Doina Marinescu, Paralegal

For the Respondent:

James Schmidt, Counsel

HEARD: By way of written submissions

OVERVIEW

1Natasha Lee (the “Applicant”) was involved in an automobile accident on October 23, 2018, and sought benefits from Wawanesa Insurance (the “Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The Respondent characterized the Applicant’s injuries as falling within the minor injury definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute. It also denied the Applicant entitlement to income replacement benefits (“IRBs”). The Applicant disagrees and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and subject to the Minor Injury Guideline (the “MIG”) and the $3,500.00 funding limit for a minor injury?

ii. Is the Applicant entitled to a medical benefit in the amount of $1,197.50 for a chiropractic treatment plan by Centenary Physio and Rehab, dated April 25, 2019?

iii. Is the Applicant entitled to a medical benefit in the amount of $1,923.50 for a chiropractic treatment plan proposed by Scarborough Medical Centre, dated October 13, 2020?

iv. Is the Applicant entitled to a medical benefit in the amount of $1,995.00 for a psychological assessment plan proposed by Scarborough Medical Assessments, dated January 18, 2021?

v. Is the Applicant entitled to IRBs for the period from October 3, 2019 to-date and ongoing, and if so, in what amount?

vi. Is the Applicant entitled to interest on the overdue payment of benefits?

RESULT

4I find that the Applicant sustained a minor injury as a result of the accident. She has not met her onus to demonstrate her entitlement to the benefits claimed or interest.

ANALYSIS

Minor Injury Guideline (“MIG”)

5The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

6The onus is on the Applicant to demonstrate that she sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

7The Applicant advances her claim on the grounds that she sustained a psychological injury as well as a functional impairment due to pain, as a result of the accident. I infer from her submissions that these are grounds for her to access treatment beyond the MIG and the $3,500.00 funding limit and for her to qualify for IRBs. The Respondent contends that the Applicant is not entitled to IRBs, as supported by the insurer’s examination (“IE”) reports, and that the Applicant has not established what the quantum of her weekly payment would be, should she be entitled to IRBs. It also submits that the Applicant has not led sufficient evidence to establish that she suffers from a chronic pain condition and that she does not suffer from an accident-related psychological injury.

8I agree with the Respondent and find that the Applicant sustained a minor injury as a result of the accident and is not entitled to the medical benefits and IRBs as claimed.

The Applicant does not suffer from an accident-related psychological injury

9I find no compelling evidence of an accident-related psychological injury which would permit the Applicant to treatment outside of the MIG and the $3,500.00 funding limit.

10The psychological pre-screen and assessment reports by Dr. S. Gabidulina, psychologist, dated January 16, and May 8, 2021, respectively, are unpersuasive. I prefer the report by Dr. T. Dumitrascu, psychologist, dated March 3, 2021. The assessments by Dr. Gabidulina never included any review of the Applicant’s medical record and relied entirely on the Applicant’s self-reported symptoms and history – which was inconsistent with the evidence before me. In the report, it notes that the Applicant sustained a concussion as a result of the accident, yet this is not reflected anywhere else in the Applicant’s medical record. A concussion is not noted anywhere in the clinical notes and records (“CNRs”) of Dr. N. Datta, family physician, nor the CNRs from the hospital the Applicant attended the day after the accident. Further, the Applicant denied any history of depression or anxiety prior to the accident however, Dr. Datta’s CNRs includes notes regarding anxiety. As a result, it appears that Dr. Gabidulina’s assessment and diagnosis of the Applicant is without a sound foundation. The Applicant reported to Dr. Gabidulina that she quit her role in data entry due to difficulty with focus and memory but reported to Dr. T. Dumitrascu, psychologist, in an IE report dated March 3, 2021, that she stopped working in data entry in July 2019 because she was no longer needed. Similarly, the Applicant reported to Dr. M. Martin, orthopaedic surgeon, in an IE report dated January 12, 2021, that she was dismissed in 2020.

11I prefer the report of Dr. Dumitrascu because it is consistent with the Applicant’s medical record. Dr. Dumitrascu assessed the applicant and conducted psychometric testing and determined that the applicant did not meet the criteria for a psychological disorder. While Dr. Dumitrascu acknowledged that the Applicant reported some family-related stress, he found no accident-related psychological injury. Dr. Dumitrascu’s report is consistent with Dr. Datta’s CNRs as there is no reference of any accident-related psychological symptoms reported in Dr. Datta’s CNRs.

12As Dr. Gabidulina is the only medical professional to diagnose the Applicant with a psychological disorder and preferring the report of Dr. Dumitrascu, I conclude that the Applicant has not sustained a psychological injury as a result of the accident.

The Applicant does not suffer from a chronic pain condition

13I find that the Applicant has not demonstrated that she suffers from a chronic pain condition which would warrant treatment outside of the MIG and the $3,500.00 funding limit.

14The Applicant suggests that she suffers from a chronic pain condition which requires ongoing chiropractic treatment. However, she has not provided medical evidence to support this claim and no medical professional has diagnosed her with a chronic pain condition as a result of the accident. Further, there is no evidence before me that indicates that the Applicant is functionally impaired by pain, or that she meets the criteria for chronic pain syndrome, as outlined by the American Medical Association.

Income replacement benefits (“IRBs”)

15Pursuant to section 5 of the Schedule, IRBs are payable to insured persons who, within the first 104 weeks following the accident, are substantially unable to perform the essential tasks of their pre-accident employment as a result of an impairment. The test for entitlement becomes more difficult after 104 weeks following the accident and asks whether the insured person suffers a complete inability to engage in employment or self-employment for which they are reasonably suited by education, training, or experience.

16The Applicant submits that she is limited in her ability to stand and engage in prolonged keyboarding and that her accident-related injuries, such as neck pain radiating into her head and trapezius, have impacted her ability to work as a data entry clerk. She takes issue with the IE report by Dr. Nesterenki, dated September 3, 2019, submitting that Dr. Nesterenki does not rule out the possibility of minor or moderate physical limitations affecting the Applicant’s work performance. The Respondent relies on Dr. Nesterenki’s IE report that finds the Applicant can complete her pre-accident job duties as a data entry clerk. It further highlights that the Applicant worked following the accident and that, in the event she was entitled to IRBs, her post-accident income would be deductible from any entitlement.

17I agree with the Respondent and find that the Applicant has not demonstrated that she is substantially unable to perform her essential tasks of employment as a result of the accident.

18The Respondent concedes that the Applicant is entitled to IRBs for the period from the date of the accident to September 23, 2019. It commissioned accountant’s reports to determine the Applicant’s entitlement and provided those reports and correspondence confirming payments in accordance with the reports, for the period ending September 23, 2019. The Applicant produced no accounting reports and made no submissions indicating the evidence suggests otherwise. As a result, I find that the Applicant’s claim for IRBs for the period from the date of the accident to September 23, 2019 has been paid accordingly.

19No medical professional supports the Applicant’s claim for IRBs. There is no information in Dr. Datta’s CNRs to suggest that the Applicant is unable to work as a result of accident-related injures. The psychological assessment reports by Dr. Gabidulina hold no weight as explained earlier. The OCF-3 dated November 27, 2018 is the only document that indicates the Applicant is unable to complete her essential tasks of employment. However, it is unpersuasive in this matter because it pre-dates her period of claim. The OCF-3, completed by L. George, physiotherapist, states that the Applicant is unable to complete the essential tasks of her employment, but is working on modified hours. Physiotherapist George anticipated a duration of disability of 9-12 weeks. Considering that the Respondent paid the Applicant’s claim up to September 23, 2019, it follows that it has paid her claim for a period longer than the period anticipated by physiotherapist George.

20On the other hand, the multidisciplinary IE report concludes that the Applicant is not substantially disabled from completing her essential tasks of employment. Kinesiologist L. Grimaldi performed a functional capacity evaluation on the Applicant and concluded that she demonstrated the ability to function in her sedentary role as a data entry clerk. Dr. Nesterenko’s report dated September 3, 2019 noted that the Applicant returned to work following the accident and that she demonstrated no ongoing objective musculoskeletal impairment attributable to the accident and that she does not have a substantial inability to perform the essential tasks of employment.

21Of all the evidence before me, there is no contemporaneous opinion or evidence to counter the findings of Dr. Nesterenko and Dr. Dumitrascu. Accordingly, I find that the Applicant has not demonstrated that she is entitled to IRBs as claimed.

Interest

22Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that no benefits are payable, it follows that no interest is payable.

CONCLUSION AND ORDER

23I find that the Applicant sustained a minor injury as a result of the accident. She is not entitled to the treatment and assessment plans in dispute because they propose goods and services outside of the MIG.

[24]

25The Applicant is not entitled to IRBs beyond what the Respondent has paid to her.

26No interest is payable.