Citation: Sgambelluri v. Wawanesa Mutual Insurance Company, 2025 ONLAT 23-005480/AABS

Licence Appeal Tribunal File Number: 23-005480/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:

Louise Sgambelluri

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR: Tyler Moore

APPEARANCES:

For the Applicant: Kristen Hamilton, Counsel

For the Respondent: Nicholas Mester, Counsel

HEARD: In Writing

OVERVIEW

1Louise Sgambelluri, the applicant, was involved in an automobile accident on July 19, 2022, 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 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 $57.00 ($430.00 less $373.00 approved) for chiropractic services, proposed by Victoria Chiropractic Clinic in a treatment plan/OCF-18 ("plan") dated December 8, 2022 and denied on December 21, 2022?

iii. Is the applicant entitled to $430.00 for chiropractic services, proposed by Victoria Chiropractic Clinic in a plan dated March 3, 2023 and denied on March 3, 2023?

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

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant has sustained a minor injury as a result of the accident, as defined in s. 3 of the Schedule. She is subject to the MIG and the $3,500.00 funding limit on treatment.

4The applicant is not entitled to the treatment plans in dispute, interest, or an award.

PROCEDURAL ISSUE

5The respondent submits that the Tribunal should not allow Dr. Robert Trevisan's June 2024 chiropractic letter for consideration because it does not comply with the production deadline set out in the Tribunal's case conference report and order dated December 13, 2023.

6The applicant submits that the letter should be admitted based on relevance.

7I have allowed Dr. Trevisan's June 21, 2024 report to be admitted as evidence on the basis of relevance to the issues in dispute, particularly the MIG, pursuant to Rule 9.4.4 of the Tribunal Rules. I also find that the probative value of this evidence outweighs any prejudice to the respondent.

ANALYSIS

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.

10The applicant submits that she should be removed from the MIG based on her pre-existing lower back and knee conditions.

11For the following reasons, I find that the applicant sustained a minor injury as a result of the accident.

Pre-existing medical condition

12I find, on a balance of probabilities, that the applicant does not suffer from a pre-existing condition that would warrant her removal from the MIG.

13To be removed from the MIG based on a pre-existing condition, the applicant must satisfy both parts of a two-part test pursuant to s. 18(2) of the Schedule. She must provide documented evidence of a pre-existing medical condition by a health practitioner, and she must also provide evidence that the pre-existing condition will prevent her from achieving maximal medical recovery from the minor injury if she is subject to the MIG limits.

14The applicant submits that she underwent a right knee replacement in 2009 and a left knee replacement in 2018, and she continues to see Dr. Peter Clark, orthopaedic surgeon. The applicant also submits that she has longstanding low back pain that radiates into her legs and makes ambulation difficult.

15According to the applicant, her lower back pain is well documented in the records of Dr. Kristin Reid, family physician, Dr. Robert Trevisan, chiropractor, and Dr. Peter Clark and Dr. Travis Marion, orthopaedic surgeons.

16Dr. Marion noted in July 2020 that the applicant's back pain in the legs can make her ambulation difficult, although she is able to care for her house, activities of daily living, and working, but with difficulty.

17The applicant further argues that Dr. Trevisan indicated on the minor injury discharge report/OCF-24 dated October 24, 2022 that she required additional intervention outside of the MIG. Then, on June 21, 2024, Dr. Trevisan noted that given the applicant's previous injuries she is prone to relapses, recurrences, and exacerbations of her condition. The applicant argues that Dr. Trevisan's opinion was that keeping her treatment in the MIG limit did not seem realistic.

18The applicant also argues that her pre-existing condition is supported by May 2019 MRI findings that she suffers from disc desiccations at L3-S1 with moderate disc degeneration at L4-S1.

19The respondent accepts that the applicant had pre-existing issues with her knees based on the records of Dr. Clark. The respondent submits, however, that most of the applicant's visits with Dr. Clark ranged from 2015 to 2018, with only one other visit on March 30, 2021.

20The respondent submits that the applicant's back-related complaints before the accident were sporadic. There were only two complaints made to Dr. Reid in 2019, and no post-accident back complaints to any physician since August 2022. In addition, the respondent argues that Dr. Reid's records do not support that the applicant is unable to achieve maximal recovery within the MIG based on her pre-existing condition.

21Though the applicant has provided documented evidence of a pre-existing medical condition, I find that the documentary evidence as to why the condition precludes recovery within the MIG is not compelling. In June 2024, Dr. Trevisan noted that the applicant's pre-accident condition renders her prone to relapses and recurrences, but not that the condition precluded her accident-related recovery should she be held within the MIG. Furthermore, the applicant's pre-existing condition was not the only basis for Dr. Trevisan's opinion. Dr. Trevisan also relied on an MRI of the applicant's lumbar spine in 2023, which indicated the possibility of an L4-L5 fracture. Dr. Trevisan specifically noted that a lumbar fracture would require him to perform new treatment that would have a negative effect on the applicant's healing process.

22The MRI report dated October 16, 2023, however, recommended a CT scan to confirm any fracture. The CT scan report dated February 17, 2024 confirmed that there was no evidence of any lumbar spine fractures.

23I am not persuaded by Dr. Trevisan's June 21, 2024 report. I find that Dr. Trevisan's recommendation that the applicant's pre-existing condition could have a potential impact on her recovery within the MIG does not automatically warrant her removal from the MIG. His opinion was based on the fact that the applicant sustained a lumbar fracture which would alter treatment and negatively impact her recovery. The applicant did not sustain a lumbar fracture.

24The applicant has not provided any other compelling medical evidence that would warrant her removal from the MIG based on a pre-existing condition, apart from Dr. Trevisan's June 2024 report. In the year leading up to the accident, there is no mention of back pain or knee pain in Dr. Reid's clinical notes and records, and the applicant only visited Dr. Clark in early 2021 for her routine yearly post-surgical follow-up.

25I find that the applicant has not satisfied section 18(2) of the Schedule and that her injuries have been rightly captured by the MIG definition in s. 3. The applicant is entitled to treatment up to the MIG limits.

26As I have found that the applicant is not removed from the MIG, but the parties have not confirmed whether the MIG limits have been exhausted, the applicant is entitled to treatment up to the MIG limits.

Interest

27Interest 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.

Award

28The 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.

29I find that the applicant is not entitled to an award under s.10 of Reg. 664 as no benefits are payable.

ORDER

30The applicant has sustained a minor injury as a result of the accident, as defined in s. 3 of the Schedule. She is subject to the MIG and the $3,500.00 funding limit on treatment.

31The applicant is not entitled to the treatment plans in dispute, interest, or an award.

32The applicant is dismissed.