Licence Appeal Tribunal File Number: 22-005942/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:
Emily McQueen
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Jennifer A Mitchell, Counsel
For the Respondent:
Garett Harper, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Emily McQueen, the applicant, was involved in an accident on February 22, 2019, and sought medical and rehabilitation benefits from the respondent, Wawanesa, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied the treatment in dispute on the basis that she sustained predominantly minor injuries that are treatable within the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES
3The 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 limit and in the MIG?
ii. Is the applicant entitled to $656.84 ($1,282.60 less $625.76 approved) for physiotherapy services, proposed by Meridian Spine and Joint Physiotherapy Clinic in a treatment plan (OCF-18) (“plan”) dated May 26, 2020?
iii. Is the applicant entitled to $1,282.60 for physiotherapy services, proposed by Meridian Spine and Joint Physiotherapy Clinic in a plan dated December 8, 2020?
iv. Is the respondent liable to pay an award under s.10 of Reg.664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has failed to demonstrate that she suffers from a pre-existing condition that warrants removal from the MIG. She has not provided compelling medical evidence of a pre-existing condition that would prevent recovery under the MIG. The MIG treatment limit has been exhausted. Therefore, it is not necessary to consider whether the plans for physiotherapy services are reasonable and necessary. As a result, there is no entitlement to interest and the respondent is not liable to pay an award.
5The application is dismissed.
ANALYSIS
6The applicant sustained minor injuries in the subject accident and therefore, her claim falls under the MIG limit of $3,500.00 for medical and rehabilitation benefits.
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 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. In all cases, the burden of proof lies with the applicant.
8Section 18(2) of the Schedule provides that despite subsection (1), the limit of $3,500.00 for medical and rehabilitation benefits does not apply to an insured person if her health practitioner determines and provides compelling evidence that the insured person has a pre-existing condition that was documented by a health practitioner before the accident that will prevent her from achieving maximal recovery under the MIG.
The applicant has failed to demonstrate that she suffers from a pre-existing condition that warrants removal from the MIG
9The applicant submits that she should be removed from the MIG based on pre-existing conditions which prevent her recovery under the MIG limits:
a. Her pre-existing back pain, whiplash, knee pain and left arm strain
b. Her pre-existing fibromyalgia
c. Her pre-existing diagnosis of skin condition, hidradenitis suppurativa
10To this end, the applicant relies on an email correspondence from her treating physiotherapist, Scott Bugler, the report of her family physician Dr. Todd Elogio, treatment records from Meridian Spine and Joint Physiotherapy Clinic and various clinical notes and records.
11In response, Wawanesa also points to Dr. Elogio’s report dated February 28, 2023, which indicates that the applicant’s physical impairments fall within the definition of a minor injury. Further it submits that part 7 of the physiotherapy treatment plans fail to identify a pre-existing condition which would prevent the applicant from maximal recovery under the MIG limits. Wawanesa also relies on the consultation reports of the applicant’s treating specialists, gynecologist, Dr. Ann Kathryn Usher and her dermatologist, Dr. Fiona Lovegrove who provide medical opinions before the accident regarding the applicant’s skin condition. Dr. Usher recommended against surgical perineal scar removal regarding the applicant’s skin condition. Dr. Lovegrove suggested loose fitting clothing and smoking cessation.
12The applicant submits that her pre-existing conditions of neck, back, knee and left arm complaints, fibromyalgia and skin condition constitute conditions under s.18 (2) that warrants removal from the MIG.
13In Mr. Bugler’s email correspondence to the respondent on December 8, 2020, he does not mention a pre-existing condition that would warrant removal of the applicant from the MIG. He only describes post-accident conditions that have delayed the applicant’s recovery. The applicant’s post-accident ankle fracture and surgical scar removal do not satisfy the test under section 18 (2). Despite the applicant’s ankle fracture and surgery, Mr. Bugler expected a good functional recovery within 8-10 weeks.
14The evidence suggests that the applicant’s recovery was briefly delayed as a result of COVID and her post-accident surgery and ankle fracture. The delays in treatment do not explain whether the applicant has a pre-existing condition which prevented her recovery under the MIG limit. A delay in treatment is not the same question as the amount of treatment required for the applicant’s recovery. The facts seem to suggest that the applicant required additional treatment after the ankle fracture. However, the ankle fracture does not satisfy the test under s. 18 (2) since it is not a pre-existing condition.
15While the applicant points to her pre-existing condition of hidradenitis suppurativa, she has not demonstrated that her pre-existing skin condition would affect her recovery. The applicant has not provided any evidence of a pre-existing condition that would warrant her removal from the MIG. While I accept that the applicant has a long-standing pre-accident skin condition, I find no compelling medical evidence by a health practitioner that this pre-existing condition would significantly delay her recovery from the accident. Mr. Bugler only refers to the applicant’s post-accident ankle fracture which slowed her progress with functional strength and endurance.
16The applicant has not provided any compelling medical evidence that her pre-existing conditions regarding her neck, shoulder, back, knee fibromyalgia and skin condition prevented her from achieving maximal recovery under the MIG. Dr. Elogio refers to the applicant’s skin condition and fibromyalgia. He does not indicate that the applicant’s recovery would require treatment outside the MIG limit as a result of these conditions.
17The applicant has not demonstrated that she has a pre-existing condition that would prevent maximal recovery under the MIG.
Are the treatment plans payable?
18The applicant seeks payment for a plan in the amount of $656.84 and a plan in the amount of $1,282.60 for physiotherapy services by Scott Bugler of Meridian Spine and Joint Physiotherapy Clinic.
19Since the applicant has not demonstrated that her pre-existing conditions satisfy s. 18 (2) to warrant removal from the MIG, it is not necessary to consider whether the plans are reasonable and necessary, since the MIG limit has been exhausted.
Interest
20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant was not successful on removal from the MIG or the plans for physiotherapy services, no benefits are owing and interest does not apply.
Award
21The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Since no payment of benefits are owing, there is no basis for an award.
ORDER
22The Tribunal orders that:
i. The applicant remains subject to the MIG;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. The applicant is not entitled to interest or an award;
iv. The application is dismissed.
Released: June 7, 2024
__________________________
Lisa Holland
Adjudicator