Connell v. Wawanesa Mutual Insurance Company, 2025 CanLII 1842

Citation: Connell v. Wawanesa Mutual Insurance Company, 2025 ONLAT 23-000736/AABS

Licence Appeal Tribunal File Number: 23-000736/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.

Parties

Between:

Simone Connell

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Adam Moftah, Counsel

For the Respondent: Michael Rattray, Counsel

HEARD: In Writing

OVERVIEW

1Simone Connell, the applicant, was involved in an automobile accident on December 24, 2019, 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 following issues are to be decided:

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 $2,845.48 for chiropractic services, proposed by Revive Health Centres Inc., in a treatment plan dated January 26, 2021?

iii. Is the applicant entitled to 687.38 ($2,072.38 less $1,385.00 approved) for chiropractic services, proposed by Revive Health Centres Inc., in a treatment plan dated May 7, 2021?

iv. Is the applicant entitled to $1,846.76 for chiropractic services proposed by Revive Health Centres Inc., in a treatment plan dated August 4, 2021?

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

RESULT

3I find that:

i. The applicant's injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plans in dispute; and

iii. The applicant is not entitled to interest.

ANALYSIS

Applicability of the Minor Injury Guideline ("MIG")

4The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in s. 3(1) of the Schedule as, "one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

6An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

7It is the applicant's burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The applicant submits she suffers from physical and chronic injuries, which are not included in the definition of a minor injury. The respondent submits that the applicant has failed to establish that her injuries are not predominately minor and that they can be treated within the confines of the MIG and the applicant has reached the maximum payable under the MIG.

The applicant did not suffer physical injuries that warrant removal from the MIG

8I find that the applicant has not provided sufficient evidence to demonstrate that her physical impairments justify treatment beyond the MIG.

9The applicant provides limited submissions as to how her accident-related physical injuries fall outside of the MIG. The applicant submits that following the accident she was taken to Scarborough General Hospital, where she was diagnosed with musculoskeletal pain and prescribed Tylenol/Advil, rest, and hydration. The applicant also relies on the clinical notes and records ("CNRs") of Dr. Imre Fejer, family physician, who assessed the applicant a week after the accident. Dr. Fejer diagnosed the applicant with neck strain, lumbar strain, bruises to the left shoulder and chest and bruised forehead, and prescribed neck exercise, massage and continuing with physiotherapy.

10The respondent submits that the applicant bears the onus of proving her injuries are not minor. It is the respondent's position that based on the applicant's limited submissions, including the medical evidence submitted, the onus has not been satisfied. The respondent also relies on the section 44 physiatry assessment report of Dr. Melody Nguyen dated October 28, 2022. The respondent highlights that during this physical assessment the applicant demonstrated normal ranges of motion and concluded that the applicant presented soft tissue sprain and strain injuries. Dr. Nguyen concluded that the applicant's soft tissue sprain and strain injuries were considered minor.

11After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that she suffers physical injuries that would remove her from the MIG. I am persuaded by the bulk of the undisputed medical evidence from the Scarborough General Hospital, the applicant's family physician Dr. Fejer and Dr. Nguyen, who all concluded that the applicant suffered from minor soft tissue injuries. This supports my finding that the applicant sustained minor soft tissue injuries which falls within the section 3 definition of a minor injury under the Schedule.

12As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a physical injury resulting from the accident that would warrant her removal from the MIG.

The applicant does not suffer from chronic pain that warrant removal from the MIG

13I find that the applicant has not provided sufficient evidence to demonstrate that her chronic pain justifies treatment beyond the MIG.

14For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that her accident-related injuries had a detrimental impact on her functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant's functionality is impaired and that the chronic pain is the cause of the disability.

15The applicant submits that she has suffered ongoing chronic pain as a result of the accident. The applicant relies on the CNRs from her medical appointment with Dr. Fejer dated February 12, 2021, where the applicant expressed ongoing neck, back and shoulder pain, and Dr. Fejer referred her for diagnostic imaging. The results of the imaging were not provided to the Tribunal and as a result it is unclear if the applicant attended. The applicant also relies on the section 44 physiatry assessment report of Dr. Nguyen that noted the applicant reporting almost two years after the accident that she still had ongoing neck, back and shoulder pain that caused her to leave her previous job. Despite the applicant's self reporting, Dr. Nguyen concludes that the applicant's physical injuries were minor and do not provide obstacles to maximal medical recovery within the MIG treatment limits. The applicant acknowledged the gaps in her medical record, attributing it to the COVID-19 pandemic and the retirement of Dr. Fejer, and not to her lack of pain.

16The respondent submits that the applicant did not provide evidence to support a chronic pain diagnosis or functional impairment. The respondent takes issue with the applicant's claim of chronic pain and relies on the infrequency of her appointments with Dr. Fejer following the accident. The CNRs submitted by the applicant reveal three appointments with Dr. Fejer from the date of the accident until February 12, 2021. The respondent also highlights the lack of medical evidence demonstrating the severity of the applicant's ongoing pain complaints, as Dr. Fejer only diagnosed the applicant with sprain and strain injuries.

17I find that the applicant does not provide evidence to establish that she has a chronic pain condition requiring removal from the MIG. Chronic pain is a severe, debilitating condition distinct from ongoing or recurring pain, and the onus is on the applicant to demonstrate that she suffers from functionally disabling pain. I find that the applicant not been diagnosed with chronic pain syndrome by a physician as a result of the accident and the applicant has also not provided evidence from health care providers, referrals to specialists, or prescriptions sufficient to meet her burden. The CNRs of Dr. Fejer only reference sprain and strain injuries which is consistent with the diagnosis of Dr. Nguyen. I find that the medical evidence does not show that the accident-related injuries had a detrimental impact on her functionality nor that the applicant suffers from chronic pain.

18I find that the applicant failed to provide evidence demonstrating that she developed or suffers from chronic pain as a result from the accident and she is therefore subject to treatment within the MIG.

19The applicant is not entitled to the disputed treatment plan because I have found that the applicant has sustained a minor injury and is subject to the MIG. As a result, an analysis of whether the treatment plan is reasonable and necessary is not required.

Interest

20Given that there are no overdue payments of benefits, the applicant is not entitled to interest.

ORDER

21The application is dismissed, and I find that:

i. The applicant's injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plans in dispute; and

iii. The applicant is not entitled to interest.