Barlow v. Wawanesa Mutual Insurance Company, 2024 CanLII 67359

Citation: Barlow v. Wawanesa Mutual Insurance Company, 2024 ONLAT 22-003506/AABS

Licence Appeal Tribunal File Number: 22-003506/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:

Bryan Barlow

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Mike Pryce, Paralegal

For the Respondent: Laura Bruce, Counsel

HEARD: By way of written submissions

OVERVIEW

1Bryan Barlow, the applicant, was involved in an automobile accident on September 9, 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 Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute as listed in the Case Conference Report and Order (“CCRO”) dated February 1, 2023 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?

ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from September 9, 2020 to August 9, 2022 and ongoing?

iii. Is the applicant entitled to $2200.00 for a Psychological Assessment, proposed by Scarborough Physio and Rehabilitation in a treatment plan dated March 11, 2021?

iv. Is the applicant entitled to $2200.00 for a Chronic Pain Assessment, proposed by Scarborough Physio and Rehabilitation in a treatment plan dated March 11, 2021?

v. Is the applicant entitled to $3405.00 for physiotherapy services, proposed by Scarborough Physio and Rehabilitation in a treatment plan dated February 9, 2021?

vi. Is the applicant entitled to $3405.00 for physiotherapy services, proposed by Scarborough Physio and Rehabilitation in a treatment plan dated April 22, 2021?

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

RESULT

3I find that:

i. The applicant has not established that his accident-related impairments warrant removal from the MIG.

ii. The applicant is not entitled to the treatment plans in dispute or interest.

iii. The applicant is not entitled to an income replacement benefit.

ANALYSIS

Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

5An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have 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 they are 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.

6The applicant submits that he should be removed from the MIG due to his psychological impairment, physical impairments and chronic pain.

The applicant has not established psychological impairments warranting removal from the MIG

7The applicant has provided limited submissions on the issue of psychological impairments, providing a general statement that that the “medical/clinical notes and reports states ongoing physical and psychological complaints…” No specific submissions have been provided as to the particular psychological symptoms that were being reported, when or to whom such symptoms were reported.

8Further, in terms of evidence in support of his claim of accident-related psychological impairments, the applicant only refers to a singular referral for psychological treatment from Dr. Shwe, the physician at his walk-in clinic. However, I agree with the respondent that this referral note, dated almost three years post-accident, is insufficient evidence to establish removal from the MIG on psychological grounds. The referral note stated that the applicant reported on August 9, 2023 that in the last “two weeks” his anxious symptoms and nightmares from the 2020 accident “came back”. As such, the applicant requested a referral to a psychologist. The respondent submits that the medical record does not show any other reports of psychological symptoms in the almost three years post-accident.

9The applicant did not refer to any other specific evidence to support an accident-related psychological impairment. He attended at his walk-in clinic regularly throughout 2020-2023 for non accident-related medical conditions. However, he does not direct me to any specific clinical notes and records (“CNR”) entry where psychological symptoms or impairments were reported. Without any additional evidence to support an accident-related psychological impairment, I find that the applicant has not established removal from the MIG on psychological grounds.

The applicant has not established chronic pain warranting removal from the MIG

10The applicant submits that the medical evidence establishes that he suffers from chronic pain or chronic pain syndrome as a result of the accident. However, he does not direct me to any specific evidence in support of this claim. In his submissions, the applicant did not reference any particular Tab in his Document Brief, or specific CNR entry to establish a chronic pain diagnosis or ongoing, severe pain. Rather, the applicant provided a vague statement that “the medical evidence of Dr. Shwe, Dr. Ali, Dr. Bukezynski, Golden Mile Walk in Clinic, Scarborough Rehab, MRI and supporting documents contained in TABS” support his significant impairments.

11The CCRO expressly specified that the parties’ submissions must make “specific reference to the evidence and law by tab and page number.” The applicant has not made any specific reference to evidence supporting his claim of accident-related chronic pain. The Tribunal’s role is that of a neutral arbiter, not an advocate for any party. The Tribunal cannot presume to know which evidence or portion thereof, if any, that a party intends to rely on in advancing his case. The applicant’s failure to specifically refer to medical evidence means that he has been unable to meet his burden of proof.

12Further, from my review of the CNRs of the applicant’s walk in clinic I find that the medical evidence does not establish pain of the duration, severity and functionally disabling extent necessary to warrant removal from the MIG. There is no reference in the CNRs to any chronic pain diagnosis, referral to a pain specialist, or ongoing prescriptions for pain medication. The applicant further has not established or provided submissions on the six AMA Guides criteria for establishing chronic pain. As such, the applicant has not established a basis for removal from the MIG on the grounds of chronic pain.

The applicant has not established physical impairments warranting removal from the MIG

13The applicant has provided limited submissions on the issue of physical impairments. He states that he suffers from “significant injuries” as a result of the accident, including a right knee tear. The only evidence the applicant references, other than the general reference to all CNRs and “documents contained in the TABS”, is an MRI of his right knee.

14With respect to the applicant’s general reference to accident-related “physical impairments” from my review of the medical record, other than the right knee injury, the applicant appears to have been diagnosed with strains and sprains of the back, neck and ribcage. However, strain and sprain type injuries fall squarely within the definition of a “minor injury”.

15The applicant further submits that he suffered a right knee tear as a result of the accident, warranting removal from the MIG. A September 15, 2022 MRI found an extrusion and “probable flap-type tear” involving the medial meniscus. The respondent argues that the MRI suggested that the cause was a ruptured Baker’s cyst and advised a clinical correlation. It submits that other than a referral to an orthopedic surgeon, no further clinical evidence was submitted by the applicant as to the cause of the knee impairment.

16Despite having the right of reply the applicant has not provided any additional submissions to respond to the respondent’s claim that the accident was not the cause of the applicant’s right knee injury. Further from my review of the CNRs of the applicant’s walk in clinic, in the period after the accident Dr. Shwe diagnosed the applicant with only back, neck and rib strain. The OCF-3 also referenced only back, neck, abdomen and pelvis impairments and did not identify any right knee injury. The OCF-18s for physiotherapy services similarly did not reference a right knee injury.

17A year and a half after the accident, on April 25, 2022, the applicant reported to Dr. Shwe that he had “pain behind the right knee off and on for 3 months and becoming worse”. Dr. Shwe further noted “no trauma or injury”. In later CNR entries the applicant reported that his right knee pain stemmed from the accident, however, I do not see this reflected in the CNRs from 2020/2021. The applicant does not direct me to any specific CNR entries or medical evidence establishing that he developed a right knee impairment from the accident.

18To warrant removal from the MIG, the onus rests with the applicant to establish not only that he suffers from a physical impairment, but that the accident was the cause of his impairment. The applicant has not led sufficient evidence in this regard.

19In the CCRO the parties have confirmed that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

Income Replacement Benefit (“IRB”)

20I find that the applicant has not established entitlement to IRBs.

21To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

22Although the CCRO listed IRBs as an issue in dispute, the applicant has not provided any submissions on his entitlement to IRBs. IRBs are not listed in his submissions as an issue in dispute and the applicant does not refer to s. 5(1) of the Schedule or the substantial inability test. The applicant further has not provided any details of his employment or explained how his accident-related impairments have affected his ability to perform his workplace tasks. The only evidence the applicant has included with respect to IRBs, is income tax returns from 2017-2022.

23To establish entitlement to IRBs, the applicant must lead evidence not only that he was employed at the time of the accident, but also that as a result of the accident he is substantially unable to complete the essential tasks of his employment. Without any submissions on the s. 5(1) test for entitlement, the applicant has not met his onus in this regard.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.

ORDER

25I find that:

i. The applicant remains within the MIG.

ii. The applicant is not entitled to the treatment plans in dispute or interest.

iii. The applicant is not entitled to an income replacement benefit.