Citation: Manji v. Wawanesa Insurance, 2025 ONLAT 23-014029/AABS

Licence Appeal Tribunal File Number: 23-014029/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:

Hasnain Manji

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Kevin Yarde

APPEARANCES:

For the Applicant:

Christina Trotta, Counsel

For the Respondent:

James Schmidt, Counsel

HEARD:

In Writing

OVERVIEW

1Hasnain Manji, the applicant, was involved in an automobile accident on December 4, 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 issue(s) in dispute is/are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $2,219.74 for psychological services, proposed by Assurance Medical Services Inc. in an OCF18/treatment plan dated September 22, 2023?

iii. Is the applicant entitled to $2,333.72 for chiropractic services, proposed by Physiomed Roytec Road in an OCF18/treatment plan dated September 7, 2023?

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

3The applicant is removed from the MIG as he met his burden and demonstrated, on a balance of probabilities, that his injuries fall outside of the definition of a minor injury in the Schedule.

4The applicant is not entitled to $2,219.74 for psychological services, proposed by Assurance Medical Services Inc. in a treatment plan dated September 22, 2023.

5The applicant is entitled to $2,333.72 for chiropractic services, proposed by Physiomed Roytec Road in a treatment plan dated September 7, 2023.

6The applicant is not entitled to an award.

7The applicant is entitled to interest on the overdue payment of benefits related to incurred expenses for the proposed chiropractic services. Having determined that certain benefits are payable, it follows that interest applies pursuant to s. 51 once the benefits are incurred.

ANALYSIS

Applicability of the MIG

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.

10In this matter, the applicant says his injuries fall outside the MIG on the basis of having a pre-existing condition that would prevent his maximum medical recovery if confined to its limits, a psychological impairment and chronic pain syndrome.

11The respondent submitted that all of the applicant’s injuries were minor in nature and that he did not have grounds to be excluded from the MIG.

Does the applicant have a pre-existing condition that precludes recovery if kept within the MIG?

12I find that the applicant has proven on a balance of probabilities that he should be removed from the MIG as a result of his pre-existing condition in the form of chronic pain.

13The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery of the insured person’s accident-related minor injury if they are kept within the cap imposed by the MIG.

14Prior to the accident, the applicant’s medical evidence indicates that he had pre-existing conditions in his wrists, knees and spine. In July 2019, it appears the pre-existing knee pain complaints were due to mild to moderate osteoarthritis with full thickness cartilage loss. In May 2021, diagnostic imaging of the spine revealed degenerative disc disease at the C4-C5 and C5-6 levels with no abnormal signal. On September 20, 2021, the applicant underwent surgery to his right and left wrists for a carpal tunnel release. The applicant was also diagnosed with ADHD and sleep apnea. Essentially, the applicant submits that these pre-existing conditions were exacerbated by the accident and warrant removal from the MIG.

15In response, the respondent submits that there is no evidence to indicate why these injuries are accident-related and thus fails on the causation test. The respondent also submits that the applicant has not provided s. 25 evidence to indicate his injuries are accident related.

16The respondent also argued that based on the decision of S.Y. v. Aviva Insurance, 2017 CanLII 63623 (ON LAT) the onus is on the applicant, to prove, on a balance of probabilities, that each and every treatment plan submitted was reasonable and necessary at the time it was submitted and with reference to contemporaneous medical evidence. The onus is on the applicant to prove the impairments are the direct result of the accident. Based on this decision the respondent submitted that the applicant has not met his evidentiary burden.

17The respondent also submitted that following the accident on December 8, 2021, the applicant only reported injuries of neck pain radiating into his left upper arm. The respondent submitted there was no reported indication the applicant suffered from right shoulder pain, bilateral knee pain or lower back pain as a result of the accident.

18With regards to treatment the respondent submits that the applicant in September 2021 had undergone pain injections. The applicant received cortisone injection by his orthopedic surgeon to the low back, bilateral knee and right shoulder.

19I agree with the applicant. The evidence shows the applicant’s right knee was already compromised at the time of the accident due to the pre-existing mild to moderate osteoarthritis. The medical documentation also notes that prior to the accident on July 24, 2019, the applicant was assessed by an orthopaedic surgeon Dr. Aaron Campbell with respect to his right knee pain. Dr. Campbell reviewed an MRI of the right knee dated October 30, 2018, which revealed “moderate degenerative changes in the patellofemoral compartment with areas of high-grade cartilage loss and lateral patellar facet superiorly”. Dr. Campbell noted he “thinks he has a tear of his meniscus”. For these reasons prevents the applicant from recovering from a minor injury.

Does the applicant suffer from chronic pain as a result of the accident?

20The applicant relies on the reports of Dr. Mohamed Salyani, family physician; Dr. Wilfred Chan MD, CCFP, Vaughan Pain Clinic; Dr. Melissa Sandrasagra, current family physician and Dr. Dimitri Edirmanasinghe, psychiatrist. On December 8, 2021, after the accident the applicant reported injuries of pain and stiffness in his neck and upper left arm to Dr. Salyani. On January 26, 2022, the applicant was diagnosed by Dr. Salyani with whiplash and upper back strain.

21Continuing to seek treatment, the applicant attended the Vaughan Pain Clinic on January 14, 2022, referred by Dr. Salyani, where he was assessed by Dr. Chan regarding his ongoing chronic pain. The applicant had follow-up appointments with Dr. Chan on February 10, 2022, to alleviate severe pain. Then on March 2, 2023, the applicant complained of right shoulder pain, bilateral knee pain and low back pain. On March 31, 2023, nerve block injections were provided to his low back due to severe pain. The applicant submitted he had some relief from these previous injections.

22On March 28, 2023, the applicant attended the Vaughan Diagnostic & Cardiac Clinic for a bilateral knee ultrasound which found a tear within the posterior horn of the right lateral meniscus. On June 14, 2024, Dr. Chan opined the applicant’s right knee demonstrates significant damage that unfortunately wouldn’t benefit from surgery as it’s not really in operable condition. Dr. Chan opined that the applicant would have to limit his knee bending and flexing movements. His neck and low back are also declining despite trigger point injections.

23On September 1, 2023, Dr. Sandrasagra opined the applicant still has neck pain, back pain and chronic right knee pain. Dr. Sandrasagra submitted additional physiotherapy is needed to manage the applicant’s pain. On September 7, 2023, Timothy Damaso, chiropractor at Physiomed Roytec Road, submitted the applicant has difficulties with some work tasks and cannot perform the work load he used to do. In terms of the goals, Damaso submitted pain reduction and increase in strength. However, Damaso does believe that suitable modified employment for the applicant can be found.

24The respondent disagreed with the applicant’s submissions that a diagnosis of chronic pain automatically warrants her removal from the MIG and submitted that the applicant bears the onus of showing the impairments are the direct result of the accident per Section 3(1) of the Schedule. Also, chronic pain, which is sequela to soft tissue injuries, is by definition, within the MIG. The respondent submits that the applicant’s current psychological issues and complaints of knee and low back pain predate the accident and would still exist even if the accident did not occur. Further, it argues that the applicant’s history of growing up with an abusive father, financial stress as well as significant previous trouble with the law including a five-year period of incarceration are the cause of his psychological conditions. The respondent submits that Dr. Edirmanasinghe’s reports make no mention of the accident.

25In terms of the evidence raised by the applicant, the respondent submitted that the applicant was referred to the Vaughan Chronic Pain Clinic on August 26, 2021 (four months before the subject accident). The respondent further submits that the applicant’s claim the accident caused a new knee meniscus tear dated from the ultrasound of March 2023 fails on the causation test.

26By relying soley on their interpretation of medical evidence I am at a loss as to why the respondent did not bring forth their own assessments. I find the fact that the respondent does not provide any medical evidence weighs heavily in the applicant’s favour.

27I agree with the applicant. I find that the respondent has not established grounds for not removing the applicant from the MIG. To meet this burden, the applicant must provide medical evidence showing the applicant’s injuries are not minor or mere sequelae.

28I am persuaded that the reports of Dr. Chan and Dr. Salyani, have shown that his chronic pain, shoulder and back pain were caused by the subject accident.

29I find that the accident did exacerbate the applicant’s pre-existing right knee, shoulder and low back pain. The applicant’s pre-existing condition in the form of chronic pain in his right knee would prevent the applicant from achieving maximum medical recovery if he remained in the MIG limits.

30For those reasons, I find that the applicant has proven on a balance of probabilities to justify removal from the MIG.

31To 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.

$2,219.74 for psychological services, proposed by Assurance Medical in a treatment plan dated September 22, 2023.

32I find that the psychological treatment plan dated September 22, 2023, for the amount of $2,219.74, is neither reasonable nor necessary.

33The plan as per Dr. Edirmanasinghe psychiatrist (December 18, 2023) recommends psychological therapy sessions aimed at his ADHD, with outpatient management for psycho education, lifestyle advice and prescribing Vynanse 30mg.

34The applicant relies heavily on Dr. Chan’s record which indicate the applicant suffers from chronic pain. Even Dr. Edirmanasinghe (December 18, 2023) makes no mention of the accident in relation to his psychological impairment. What is missing is any psychological symptomatology arising from the accident. During the assessment, the applicant denied having symptoms of generalized anxiety disorder, symptoms of social anxiety disorder, symptoms of panic disorder or symptoms of obsessive-compulsive disorder. With regards to the Adult ADHD Self-Report Scale Dr. Edirmanasinghe diagnosed that the applicant meets diagnostic criteria for attention deficit hyperactivity disorder, combined type. Dr. Edirmanasinhe submitted there are no acute safety concerns at this time and thus the applicant can be safely managed as outpatient.

35Dr. Edirmanasinghe, in his December 18, 2023, report, acknowledged the applicant’s prior history of psychosocial factors may be contributing to his current presentation. Notably his attachment to his mother who was inconsistent and a father who was abusive. As a result, the applicant since an early age had feelings of being unwanted and thus unloved.

36Based on the totality of the evidence, I find that the psychological treatment plan dated September 22, 2023, is not reasonable and necessary.

37While the applicant has a documented history of mental health concerns, I am not persuaded that the proposed psychological treatment is reasonable and necessary in the context of this accident. While the applicant argues that the respondent has not put forth any medical submissions, I find that putting forth a section 44 examination is not a requirement but rather an investigative tool that may be used by the insurer. It is the applicant’s onus to prove that they are entitled to the benefit, and I believe they have not done so. I place greater weight on Dr. Edirmanasinghe’s report as it is the most comprehensive. However, his report fails to prove that the applicant suffered a psychological impairment as a result of the accident.

38Accordingly, on a balance of probabilities, I find that the treatment plan is not reasonable and necessary.

$2,333.72 for chiropractic services, proposed by Physiomed Roytec Road in a treatment plan dated September 7, 2023.

39The treatment plan in dispute is for chiropractic treatment. The applicant submits that chiropractic treatment was recommended by his family doctor Dr. Salyani (December 8, 2021) who referred him to the Vaughan Pain Clinic where Dr. Wilfrid Chan examined him. The goal of the services was for pain reduction, increased range of motion, strength, a return to activities of normal living as a legitimate reason to continue therapy.

40The respondent advised that the disputed treatment plan was being denied because it believed that the applicant’s injuries fell within the definition of a minor injury. The respondent’s argument is that the onus is on the applicant to prove the impairments are a direct result of the accident. It should be noted that the respondent did not prepare any Section 44 assessments. In its defense the respondent submits by referring to Section 38 of the Schedule does not necessitate the conduct of Section 44 assessments, and Section 44 of the Schedule confirms that same are to be conducted at an insurer’s discretion, within certain limitations. The respondent also argues that the applicant was referred to the Vaughan Chronic Pain Clinic on August 26, 2021, months prior to the subject accident. The respondent did not provide any medical reasons to deny the disputed treatment plan.

41The respondent submits that the applicant’s assertion that the accident caused a new knee meniscus tear as seen in the March 2023 ultrasound is merely speculative. Since MRIs prior to the accident (May 2021) already demonstrated severe osteoarthritis and joint damage. The respondent also submits that the applicant has no Section 25 evidence to indicate why this is accident related and thus must fail on the causation test. The respondent also refers to Dr. Salyani report (December 8, 2021) where the applicant’s only issues related to the accident were neck pain radiating into his upper arm.

42The applicant highlights that the medical records from Dr. Chan and Dr. Salyani and the diagnostic imaging of the applicant’s right knee and back show he had a pre-existing injury. The applicant states that an ultrasound of his right knee on March 5, 2022, showed an isolated tear at the posterior horn of the right lateral meniscus. The MRI of the right knee dated September 17, 2021, three months before the accident, did not report a tear and osteoarthritis in the knee was established. While the respondent relies soley on their interpretation of medical evidence.

43I do not agree with the respondents’ arguments that the treatment plan is not reasonable and necessary. I find that there is compelling evidence that in September 2023, chiropractic treatment was reasonable and necessary. The progress notes from Dr. Chan from March 31, 2023, indicates the applicant had some relief from nerve block injections to his low back. However, Dr. Sandrasagra opined on September 1, 2023, that the applicant still has neck pain, back pain and chronic right knee pain. On March 14, 2024, Dr. Chan administered injections to both knees and both wrists to alleviate chronic pain. The applicant was still experiencing low back pain and bilateral knee pain. On April 4 and 26, 2024 Dr. Chan prescribed cream to alleviate bilateral knee pain. It appears that chiropractic treatment was having a positive impact on the applicant’s symptoms around the time the treatment plan was submitted.

44The respondent did not provide any sufficient medical reasons to deny the disputed treatment plan, instead it simply addressed whether the applicant belonged in the MIG.

45I find that on a balance of probabilities, the treatment plan in dispute was reasonable and necessary at the time it was submitted. I agree with the applicant that pain relief is a legitimate goal of treatment, and I do not find the cost of this treatment plan to be excessive in an attempt to reach that goal.

Interest

46Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

47The 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.

48The applicant did not provide any evidence to substantiate that the respondent unreasonably withheld or delayed payments.

49Therefore, as he has not met his onus, I find the applicant is not entitled to any award.

ORDER

50I find that:

i. The applicant is removed from the MIG as he met his burden and demonstrated, on a balance of probabilities, that his injuries fall outside of the definition of a minor injury according to the Schedule.

ii. The applicant is not entitled to $2,219.74 for psychological services.

iii. The applicant is entitled to $2,33.72 for chiropractic services.

iv. The applicant is not entitled to an award.

v. The applicant is entitled to interest pursuant to s. 51 of the Schedule on the overdue payment of benefits related to incurred expenses for the proposed chiropractic services.