Licence Appeal Tribunal File Number: 22-007546/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:
Samantha Gavey
Applicant
and
Wawanesa Insurance
Respondent
DECISION
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Alex Nikolaev, Counsel
For the Respondent:
Nicholas M. Wine, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Samantha Gavey, the applicant, was involved in an automobile accident on April 13, 2021, 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:
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 $2,845.64 for physiotherapy services, proposed by We Care Rehab Clinic in a treatment plan dated October 9, 2021?
iii. Is the respondent entitled to repayment of $1,657.14, plus interest, relating to its payment of an income replacement benefit?
iv. Is the applicant entitled to interest on any overdue payments of benefits?
3In the applicant’s submissions, she withdrew the following issues which were previous in dispute:
i. Is the applicant entitled to income replacement benefits in the amount of $400.00 per week from January 10, 2022 to date and ongoing?
ii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
4The applicant’s accident-related injuries are outside of the MIG as she suffered a concussion.
5The applicant is not entitled to the treatment plan for $2,845.64 for physiotherapy services.
6The respondent is not entitled to a repayment of income replacement benefits.
7As no benefits are owing, interest is not payable.
ANALYSIS
Application of the Minor Injury Guideline
8Section 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.”
9An insured 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 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.
10The applicant submits that her injuries fall outside of the MIG as a result of psychological symptoms and impairments, a concussion, and an injury to her pelvic region. The respondent disagrees.
11I find that the applicant has proven on a balance of probabilities that she sustained a concussion in the accident, and her injuries accordingly fall outside of the MIG.
12There is evidence that the applicant was experiencing concussion symptoms the day after the accident, when she was seen at the St. Joseph’s urgent care clinic. She reported headaches, sensitivity to light, and a stiff neck with throbbing pain shooting down to her back with movement. She was taking Tylenol as needed. She did not have blurred vision, loss of consciousness, nausea, or vomiting. She did not strike her head in the accident. She described her headaches as feeling like the migraines she used to get. She was diagnosed with a cervical and lumbosacral strain, and it was recommended that she use ice and a muscle relaxant. She was told to follow up with her family physician, Dr. Ayibiowu, in one week.
13The applicant first received a concussion diagnosis on April 16, 2021, when she returned to St. Joseph’s again, and met with Dr. Aliya Ranjaun. She was experiencing headaches, right sided neck pain, back pain, light sensitivity, nausea, dizziness, and was presyncopal. She was referred to a concussion clinic. She also had a telephone consult with Dr. Ayibiowu on the same day, and advised him that she had pain in her neck and back, but no dizziness or vomiting.
14On April 20, 2021, the applicant visited Dr. Ayibiowu again. She was weepy because of the pain and an inability to take care of her children. She had severe head and neck pain, and Dr. Ayibiowu stated that she had a concussion. Medications were not helping, and she was unable to work.
15The applicant attended We Care Rehab Clinic on April 21, 2021, where she complained of neck pain, middle back pain, right shoulder pain, lower back pain, headaches, light sensitivity, dizziness, and migraines. She reported being unable to do anything with her children, and that her parents were helping her.
16On May 4, 2021, the applicant reported headaches and dizziness with some nausea to Dr. Ayibiowu. He noted that her headache was very severe at times, and she still had a lot of shoulder and neck pain. She was seeing her chiropractor and physiotherapist twice a week. She reported that movement aggravated her pain, headache, and dizziness. She was still waiting for her referral to the concussion clinic, and Dr. Ayibiowu recommended that she chase the referral to the concussion clinic. The applicant again complained of back and neck pain and an inability to work on June 15, 2021.
17The respondent argues that the applicant has denied a head injury or loss of consciousness, and despite a referral to a concussion clinic, the applicant has not attended. It submits that the mechanism of the accident does not line up with a concussion, as she did not strike her head and there is no evidence that her head snapped back. The respondent also argues that the applicant’s diagnosis of a concussion was not definitive, as it was only described as “likely”. It submits that although Dr. Ayibiowu stated “pt has a concussion” on April 20, 2021, that appears to be based solely on the hospital record from April 16, 2021 which did not confirm the diagnosis.
18The respondent relies on the s. 44 report of Dr. Kopyto, general practitioner, from December 17, 2021. The applicant described intermittent instances of dizziness, occasional nausea, and sensitive vision, but advised Dr. Kopyto that these symptoms were improving. Although he diagnosed the applicant with post-traumatic headaches, he indicated that there was no evidence of an accident-related concussion.
19The respondent also makes brief reference to the s. 44 report of Dr. Nikkhou, stating that he is a neuropsychologist, and even he did not render a concussion diagnosis. Dr. Nikkhou conducted a psychological assessment, not a neuropsychological assessment. His only opinions were stated to be from a psychological perspective. He refused to comment on the physical aspects of the MIG definition, stating it was outside of the scope of his clinical psychology practice. I therefore do not find his report to be helpful when determining whether the applicant sustained a concussion.
20The respondent relies on Hughes v. Intact Insurance Company, 2022 CanLII 53743, where the Tribunal stated that “the most insightful medical information would be a diagnosis with an explanation from a neurologist.” Further, no information was provided regarding the methodology used to determine a concussion diagnosis in that case, and the respondent submits that is similar to the case here. In Hughes, the diagnosis of concussion was provided by a chiropractor, who was not qualified to make that diagnosis; no diagnosis was provided by a qualified medical practitioner. That is not the same fact scenario as in the case before me. In addition, although an explanation from a neurologist would certainly be helpful, it is not a necessity.
21The respondent also relies on Nelson v. Coseco Insurance, 2023 CanLII 50590. I also find that this case is distinguishable, as the applicant had “elements of concussion” and symptoms of concussion, with no actual diagnosis or referrals. In this case, Dr. Ayibiowu did not merely make note of concussion symptoms, he specifically stated that she had a concussion, which was also diagnosed by Dr. Ramjuan. Further, the applicant was referred to a concussion clinic.
22Finally, the respondent relies on Davidenko v. Unifund, 2021 CanLII 13189, which I also find to be distinguishable. The Tribunal preferred the evidence of the applicant’s neurologists, who did not diagnose a concussion, to the applicant’s family physician. This case does not, as the respondent suggests, create a blanket rule that a concussion diagnosis ought to be supported by a concussion expert in order for it to be accepted by the Tribunal. The Tribunal’s decision in Davidenko rested on the specific medical evidence before it.
23In contrast, the applicant submits that a concussion diagnosed by a family physician is sufficient to warrant removal from the MIG, citing Tambyah v. Economical, 2022 CanLII 14960.
24A family physician can certainly make a concussion diagnosis. A neurological opinion is not required in order for the applicant to be removed from the MIG because of a concussion. The cases relied on by the respondent do not make that proclamation, and the Schedule does not say so either.
25Despite the respondent’s assertion above, I find it more likely that Dr. Ayibiowu was not simply repeating Dr. Ramjuan’s diagnosis of a likely concussion. He mentioned the diagnosis on two separate visits, and advised the applicant to “chase” the referral to the concussion clinic, which leads me to believe that he felt it was important the applicant receive treatment for her concussion. The fact that the applicant did not attend the concussion clinic does not mean that her physicians made an error in diagnosing one. Further, the applicant described symptoms of dizziness, nausea, and headaches to Dr. Ayibiowu, so it cannot be said that the diagnosis was simply being repeated and was not based on the applicant’s symptoms.
26It is common knowledge that a concussion may occur without the head being impacted. Further, I find that the use of the word “likely” by Dr. Ramjuan does not mean that she did not sustain a concussion. It means that it was more likely than not to have occurred.
27I agree with the respondent that Dr. Ayibiowu is not a neurological specialist; however, neither is Dr. Kopyto. I prefer the diagnoses made by Dr. Ayibiowu and Dr. Ramjuan as they were more contemporaneous to the accident, and were made in light of the applicant’s symptoms at the time. Although it is possible that the applicant’s concussion symptoms had improved by the time of her assessment with Dr. Kopyto, it does not mean that she did not have a concussion when it was diagnosed.
28On a balance of probabilities, I find it more likely than not that the applicant sustained a concussion in the accident, which is not a minor injury as contemplated by the Schedule.
29I find that the applicant is not entitled to $2,845.64 for physiotherapy, massage, and shockwave therapy proposed in a treatment plan dated October 9, 2021.
30To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
31The applicant submits that, around the time that this treatment plan was submitted, she was still off work and was still suffering from concussion symptoms, headaches, and neck, back, and shoulder pain. She points to the records of Dr. Ayibiowu from May and June 2021, which state that she was experiencing shoulder, back, and neck pain, was not able to return to work, and was receiving physiotherapy and chiropractic treatments regularly. She also notes that Dr. Nikkhou reported that her physical pain was a contributing factor to her psychological symptoms. The applicant submits that this treatment plan is reasonable and necessary in its goal to decrease pain, increase functionality, increase range of motion, and assist her in returning to her activities of daily living and employment.
32The respondent relies on Dr. Kopyto’s report of December 17, 2021, where he found that the applicant’s movements were mostly within the “normal” range of motion, and that she only suffered soft tissue injuries. The respondent submits that the applicant has produced no evidence around the time the treatment plan was submitted that supported ongoing impairments or the need for the proposed services, and there is no compelling evidence that she requires any further facility-based treatment.
33During the visit to Dr. Ayibiowu on May 4, 2021, the applicant mentioned that she was attending regular chiropractic treatments and physiotherapy, but Dr. Ayibiowu did not make any recommendations in that regard. He advised that she should continue with range of motion exercises. The next and final time the applicant saw Dr. Ayibiowu prior to this treatment plan being submitted was June 15, 2021. Dr. Ayibiowu’s recommendations were to continue with analgesics, pace herself, and seek help if things worsened. There was no recommendation for further physical therapy. The only other records from 2021 from Dr. Ayibiowu were for visits unrelated to the accident. Despite apparently attending physiotherapy and chiropractic treatments regularly, there are no records before me from those sessions.
34It is difficult, if not impossible, to determine what benefit the applicant had been deriving from facility-based treatment leading up to the submission of this treatment plan. It is not clear whether her pain was improving as a result of treatment, how much it was helping if at all, or whether treatment was allowing her to return to her activities of daily life or employment. The applicant has not provided evidence as to whether the goals of this treatment plan would be met. The only information about whether further treatment would be beneficial is contained within the treatment plan itself. That alone is not sufficient evidence.
35Given that Dr. Nikkhou is a psychologist, his report is not overly useful as it pertains to the applicant’s physical condition and whether further physical therapy would be helpful. On the other hand, Dr. Kopyto conducted a physical assessment and opined that he did not have any treatment recommendations, and that the applicant could return to her pre-accident job. In fact, it appears that the applicant did return to work on December 8, 2021.
36The applicant has not met her burden of proof in showing that the treatment plan was reasonable and necessary at the time it was submitted.
Repayment of Income Replacement Benefit
37I find that the respondent has not met its burden of proving an entitlement to a repayment of income replacement benefits.
38Section 52 of the Schedule concerns the repayment of benefits. Under s. 52(1)(a), a person is liable to repay to the insurer any benefit that is “paid to the person” as a result of an “error on the part of the insurer,” the insured person or any other person, or as a result of wilful misrepresentation or fraud. Sections 52(2) and (3) provide timelines for repayment requests if a person is liable to repay an amount to an insurer. The insurer shall give the person notice of the amount that is required to be repaid. If the notice required is not given within 12 months after the payment of the amount that is to be repaid, the person to whom the notice would have been given ceases to be liable to repay the amount unless it was originally paid to the person as a result of wilful misrepresentation or fraud.
39The respondent submits that it had paid income replacement benefits up to January 10, 2022, but was subsequently advised by the applicant’s employer that she had returned to work on December 8, 2021. It wrote a letter to the applicant on March 11, 2022 advising that there had been an overpayment in the amount of $1,657.14. The applicant requested a payment plan for the overpayment due to financial stress, and the respondent advised that it would be happy to have a teleconference. The respondent sent follow-up letters to the applicant on April 20, 2022, and June 1, 2022. The respondent submits that the applicant has not reimbursed the respondent for the overpayment to date.
40The applicant’s only submission is that the respondent has not submitted any evidence to substantiate her repayment obligation.
41Neither party has provided me with evidence that would allow me to quantify the amount of the repayment. I accept that the applicant returned to work on December 8, 2021; the applicant did not advise the respondent that they were mistaken when she responded to the overpayment letter, and she advised Dr. Dr. Nikkhou during his assessment on December 7, 2021 that she was returning to work the next day. However, I cannot verify what was paid by the insurer, how much she earned once she returned to work, or whether she maintained employment for any length of time.
42I note that the respondent is not arguing that the applicant failed to provide documents that would assist with this calculation. It demanded a repayment based on calculations that it has not shared with the Tribunal. The respondent has the onus of proving the amount of its entitlement, and it has failed to do so. I accordingly cannot determine the quantum of any overpayment.
Interest
43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits have been found to be owing, interest is not applicable.
ORDER
44The applicant’s accident-related injuries are outside of the MIG as she suffered a concussion.
45The applicant is not entitled to the treatment plan for $2,845.64 for physiotherapy services.
46The respondent is not entitled to a repayment of income replacement benefits.
47As no benefits are owing, interest is not payable.
Released: August 14, 2024
Rachel Levitsky
Adjudicator