Katherine House v. Wawanesa Insurance, 2024 CanLII 4270

Licence Appeal Tribunal

Citation: House v. Wawanesa Insurance, 2024 ONLAT 22-000345/AABS

Licence Appeal Tribunal File Number: 22-000345/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:

Katherine House

Applicant

And

Wawanesa Insurance

Respondent

DECISION

VICE-CHAIR: Nancy Aquilina

APPEARANCES:

For the Applicant: Emily K. Foreman, Counsel

For the Respondent: James Schmidt, Counsel

HEARD: By way of written submissions

OVERVIEW

1Katherine House, the applicant, was involved in an automobile accident on January 29, 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 the respondent, Wawanesa Insurance, and 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 s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (“MIG”)?
2. Is the applicant entitled to a medical benefit in the outstanding amount of $50.14 ($98.63 submitted less $48.49 approved) for massage therapy treatment, submitted on an auto insurance standard invoice /OCF-21 dated September 22, 2021?
3. 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’s injuries are predominantly minor as defined in s. 3 of the Schedule and, therefore, subject to treatment within the $3,500.00 MIG funding limit.
2. As I have found that the applicant’s injuries are minor and the MIG funding limit has been exhausted, the applicant is not entitled to $50.14 for massage therapy treatment, submitted on an auto insurance standard invoice /OCF-21 dated September 22, 2021.
3. No interest is payable.

ANALYSIS

The applicant’s injuries are predominantly minor and fall within the MIG

4Based on the medical evidence, I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.

5Section 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 in accordance with the MIG. 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.”

6It has been determined by the Tribunal that an applicant may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG, or if they have a documented pre-existing condition preventing recovery in the MIG under s. 18(2). The Tribunal has also determined that evidence of chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG. In all cases the onus falls on the applicant to establish, on a balance of probabilities, that the applicant’s injuries warrant removal from the MIG.

7The applicant submits that she developed a headache, chest, neck, back, and hip pain following the accident and attended chiropractic treatment with Dr. Franqui, chiropractor, and massage therapy treatment with Scott Verhaege, massage therapist, as lifting, twisting, checking blind spots, and prolonged standing and sitting aggravated her injuries.

8In support of her claim, the applicant submits clinical notes and records of Dr. Franqui and the treatment plan of Scott Verhaege dated October 16, 2020 that clearly identify soft tissue related injuries. The treatment plan of Scott Verhaege specifically notes sprains and strain of the thoracic spine, lumbar spine, cervicalgia, and whiplash associated disorder, physical injuries that fall squarely within the MIG.

9The respondent takes the position that the onus is on the applicant to prove that her injuries warrant removal from the MIG. According to the respondent, the applicant attended her family physician on one occasion in relation to the accident and reported severe back pain. However, the visit was virtual, and the applicant was advised to attend in person for a physical assessment. The respondent submits that the evidentiary record contains no indication of further attendances related to the accident.

10I do not find the clinical notes of Dr. Obute, family physician, persuasive. In the first note dated December 3, 2021, the applicant reports severe back pain in which Dr. Obute responds with a request for a follow up in-person appointment for a physical assessment of the applicant’s accident-related injuries. In the second note dated December 20, 2021, there is no reference to the completion of a physical assessment of her accident-related injuries.

11Based on the physical injuries noted in the records above, I find that the applicant’s injuries are minor in nature. When considering the following additional factors that may remove the applicant from the MIG, I find that the applicant’s accident-related injuries on a whole are predominantly minor as defined in s. 3 of the Schedule.

The applicant’s pre-existing injuries do not remove her from the MIG

12I do not find that the applicant’s pre-existing injury and previous accident warrant her removal from the MIG.

13Section 18(2) of the Schedule states that the MIG limit does not apply to the applicant if a health practitioner determines and provides compelling evidence that she has a pre-existing medical condition that was documented before the accident and that will prevent her from achieving maximum medical recovery from the minor injury if she is subject to the limit.

14The applicant submits the clinical note of Dr. Barr, her previous family physician, dated May 1, 2017, that states that she was involved in a previous motor vehicle accident that resulted in diagnosis of cervical myofascial pain syndrome. This syndrome, according to the applicant’s submissions, has worsened her current neck pain and prevents her from reaching maximum medical recovery. In addition to this, the applicant takes the position that Dr. Kumbhare opined that the applicant’s history of depression is a barrier to her recovery.

15The respondent contends that upon review of Dr. Kumbhare’s report, the applicant makes no complaints of ongoing neck pain. The respondent submits that despite Dr. Kumbhare’s knowledge of the applicant’s pre-existing neck pain he does not opine on the extent to which the previous accident worsened it. Lastly, it is the respondent’s position that the evidentiary record does not support a pre-existing diagnosis of depression.

16Dr. Barr’s clinical note dated May 1, 2017, completed five months following the December 2016 accident, lists cervical myofascial pain syndrome and a recommendation for pain medication, physiotherapy, and massage therapy, however, I am not directed to compelling medical evidence that this syndrome has exacerbated the applicant’s current injuries or that it will prevent maximal recovery if she is kept within the MIG, as is required by s. 18(2).

17The treatment plan of Scott Verhaege dated October 16, 2020, does not identify any pre-existing medical condition or injury documented prior to the accident that will prevent the applicant from achieving maximum medical recovery from the MIG if the applicant is kept within it.

18Dr. Obute’s clinical notes do not refer to ongoing neck pain as a result of a previous accident or pre-existing psychological impairments. I agree with the respondent that Dr. Kumbhare does not list neck pain as being a current complaint. Dr. Kumbhare mentions Dr. Franqui’s clinical notes that identify neck pain complaints. With that said, neither Dr. Franqui nor Dr. Kumbhare explain to what extent the 2016 accident has contributed to its worsening or offer an opinion that would satisfy the requirements of s. 18(2) for removal from the MIG.

19I am not pointed to corroborating evidence that the applicant is struggling with depression or ongoing neck pain, as alleged. In fact, Dr. Kumbhare’s report states that there are no records from the applicant’s family physician or hospital available for review at the time the assessment is conducted.

20Therefore, I find that the applicant has not established that she would be prevented from achieving maximum medical recovery if kept within the MIG based on her pre-existing medical conditions and her previous motor vehicle accident, as required by s. 18(2).

The applicant’s psychological impairments do not remove her from the MIG

21I do not find that the applicant’s psychological impairments justify removal from the MIG.

22The applicant relies on Dr. Kumbhare’s report to support that she suffers from psychological distress and vehicular anxiety. Specifically, Dr. Kumbhare states that she is uncomfortable in unfamiliar areas, travelling highways, being around large vehicles and being a passenger due to her anxiety and that she suffered from pre-existing depression.

23The respondent argues that the applicant should not rely on Dr. Kumbhare’s conclusions that she should be removed from the MIG for psychological impairments as Dr. Kumbhare is a physiatrist and, therefore, his opinion on the psychological injuries should not be given any weight. The respondent takes the view that the applicant has not provided any compelling evidence to support findings of pre-existing depression as noted by Dr. Kumbhare.

24I do not place weight on Dr. Kumbhare’s opinion that the applicant sustained accident-related psychological injuries as I agree with the respondent that it is beyond the scope of practice of a physiatrist to opine on psychological impairments. Although Dr. Kumbhare comments on a medical history of depression with the use of medication to treat it, I am not pointed to medical evidence from a treating physician, psychologist, or psychiatrist to support this claim. Dr. Barr and Dr. Obute do not make mention of psychological impairments or recommend psychological treatment.

25For these reasons, I find that the applicant did not meet her onus to demonstrate that she sustained psychological impairments that would remove her from the MIG.

The applicant’s pain does not remove her from the MIG

26Based on the medical evidence before me, I find that the applicant has not met her evidentiary burden to prove that she suffers from chronic pain that causes functional impairment.

27The applicant submits that due to her accident-related injuries, she has limited functional ability and that Dr. Kumbhare’s report provides a clear diagnosis of chronic pain syndrome. Further to this report, the applicant contends that the records of Scott Verhaeghe and Dr. Franqui demonstrate her ongoing functional limitations and her lack of tolerance to housekeeping and home maintenance activities due to pain and reduced range of motion.

28Conversely, the respondent takes the position that Dr. Kumbhare does not make a clear diagnosis of chronic pain and that the report repeatedly states that the applicant effectively engages in her pre-accident activities of daily living and her personal care. Lastly, the respondent submits that Dr. Kumbhare’s report does not contemplate any of the six criteria for chronic pain as set out in the AMA Guides, a measure of chronic pain that has been accepted routinely by the LAT.

29Although I acknowledge that the applicant is experiencing pain when performing her employment related tasks and household activities, for pain to be considered chronic, it must be more than mere sequelae of her injuries and its severity must cause functional impairment. Her chronic pain does not appear to cause functional impairment. The applicant reports to Dr. Franqui that due to her sore upper and lower back, she can do heavy lifting and sit for prolonged periods of time while studying but must take breaks.

30I find that Dr. Kumbhare’s report does not establish that the applicant has chronic pain with functional impairments. The applicant reports to Dr. Kumbhare that she can manage her personal care including grooming and dressing and can tolerate grocery shopping and meal prep but takes longer to prepare a meal and cannot carry as much, requiring assistance from a neighbour. I find that the applicant’s impairments have not prevented her from working 50 hours a week at two jobs that involve lifting and carrying 15-20 pounds often, 50 pounds occasionally, and often traveling long distances to unfamiliar locations, as reported to Dr. Kumbhare and set out in his report. In addition to this, the applicant reports that she is uncomfortable with it, but that her accident-related injuries do not prevent her from driving.

31The respondent argues that Dr. Kumbhare’s report does not contemplate any of the six criteria for chronic pain as set out in the AMA Guides. Although I agree that the AMA Guides’ six criteria for chronic pain may be a useful analytical tool for assessing functional capacity as it relates to chronic pain, an adjudicator is not bound by the AMA Guides when evaluating an applicant’s claim for chronic pain.

32As the clinical notes and records of Dr. Franqui and report of Dr. Kumbhare identify that the applicant is functionally capable of performing her home and work-related activities of daily living, I find that the applicant has not satisfied her onus to prove that she has chronic pain with functional impairment.

MIG Determination

33For the reasons noted above, the applicant remains within the MIG and its $3,500.00 funding limit.

34As the applicant has been found to remain within the MIG, which has been exhausted, I do not need to consider if the disputed treatment plan is reasonable and necessary.

35The treatment plan and interest are not payable.

ORDER

36For the reasons outlined above, I find the following:

1. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and, therefore, subject to treatment within the $3,500.00 MIG funding limit.
2. As I have found that the applicant’s injuries are minor and the MIG funding limit has been exhausted, the applicant is not entitled to $50.14 for massage therapy treatment, submitted on an auto insurance standard invoice /OCF-21 dated September 22, 2021.
3. No interest is payable.