Citation: [A.B] v. Wawanesa Mutual Insurance Company, 2025 ONLAT 23-001306/AABS

Licence Appeal Tribunal File Number: 23-001306/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:

[A.B] (By their litigation guardian, [A.B])

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Nadia Mauro

APPEARANCES:

For the Applicant:

Ramendeep Minhas, Counsel

For the Respondent:

Gabrielle Nigro, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1[A.B], the applicant, was involved in an automobile accident on April 1, 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 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:

1. 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?

2. Is the applicant entitled to $25,495.00 for multidisciplinary CAT assessments, proposed by 101 Assessments in a treatment plan (“OCF-18”) dated December 2, 2022?

3. Is the applicant entitled to $3,065.00 for chiropractic treatment, proposed by 101 Physio in an OCF-18 dated March 7, 2022?

4. Is the applicant entitled to $2,730.00 for counselling mental health and addictions, proposed by 101 Assessments in an OCF-18 dated March 24, 2021?

5. Is the applicant entitled to $2,460.00 for functional cognitive assessment, proposed by 101 Assessments in an OCF-18 dated March 24, 2021?

6. Is the applicant entitled to $2,460.00 for chronic pain assessment, proposed by 101 Assessments in an OCF-18 dated March 24, 2021?

7. Is the applicant entitled to $3,178.31 for chiropractic treatment, proposed by 101 Physio in an OCF-18 dated October 14, 2022?

8. Is the applicant entitled to $3,178.31 for physiotherapy treatment, proposed by 101 Physio in an OCF-18 dated June 9, 2021?

9. Is the applicant entitled to $1,063.82 for physiotherapy treatment, proposed by 101 Physio in an OCF-18 dated January 25, 2021?

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

11. 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 remains within the MIG and is not entitled to the OCF-18s in dispute, interest, or an award.

ANALYSIS

Minor Injury Guideline

4I find that the applicant has not established on a balance of probabilities that his injuries warrant removal from the MIG.

5Section 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.”

6An 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.

7The applicant submits that he should be removed from the MIG on the basis of:

a) Pre-existing physical and psychological impairments;

b) Psychological impairment; and

c) Chronic pain.

a) Pre-existing condition

8I find that the applicant has not proven, on a balance of probabilities, that his pre-existing condition would warrant removal from the MIG.

9The applicant submits that he has a pre-existing history of physical and mental conditions going back to 2014, of which are documented and treated by various practitioners, and are a barrier to achieving maximum recovery within the MIG limits.

10The respondent submits that the applicant has not provided any compelling evidence to support that his alleged pre-existing injuries have impacted his ability to recover within the confines of the MIG.

11I find that it is clear from the evidence that the applicant has a pre-accident history of physical and psychological impairment. The Medical Documentation Review (“MDR”) dated January 14, 2021, included as part of the catastrophic impairment determination report, dated August 12, 2023, shows the applicant has pre-existing impairments such as back pain, neck pain, poor sleep, anxiety, and depression since 2014.

12However, for the following reasons, I am not satisfied that the applicant has met the second part of the test pursuant to s.18(2) of the Schedule. As set out above, the second half of the test is that there must be compelling evidence that the pre-existing condition would preclude recovery from the accident-related minor injury if the applicant were subject to the MIG.

13I find that post accident, the clinical notes and records (“CNRs”) of family practitioner, Dr. [E.O] show that the applicant attended on September 19, 2019, and May 28, 2021 with complaints of shoulder pain, low back pain radiating to the left leg, and depression affecting his memory. While Dr. [E.O] references the prior accident in 2014 and the subject accident in both of these attendances, Dr. [E.O] does not comment on whether the applicant would be prevented from reaching maximum medical recovery if kept within the MIG. Likewise, while the CNRs of psychologist, Dr. Ahmed Mansour, continue to report depression post-accident, this assessor does not reference the subject accident or whether the applicant’s pre-existing psychological impairment would prevent recovery if he is kept within the confines of the MIG.

14The applicant also underwent a number of assessments to determine if he was catastrophically impaired. In reaching my conclusion, I have considered these assessments and find that they also do not indicate that the applicant’s pre-existing conditions prevent maximum recovery within the MIG limits.

15Specifically, I find that orthopaedic surgeon, Dr. Tajedin Getahun, in his report dated June 13, 2023, noted a pre-accident history of a prior motor vehicle accident where the applicant suffered injuries to his neck, back, and shoulders. The applicant reported to Dr. Getahun an increase in severity of symptoms after the subject accident. Neurosurgeon Dr. Neilank K. Jha, in his assessment dated June 20, 2023, reported that the applicant experienced an exacerbation in his cognitive, physical, emotional/behavioral and sleep-related impairments as a direct result of the subject accident. Psychiatrist, Dr. Sadiq Hasan, in his report dated July 4, 2023, reported injuries sustained by the applicant from a previous accident in 2014 were worsened by the subject accident. However, these assessors do not opine on the applicability of the MIG, or whether the applicant would be prevented from reaching maximum medical recovery if subject to funding within the MIG limits.

16While I acknowledge that there is evidence that the applicant’s pre-accident injuries have been exacerbated by the accident, exacerbation of the pre-existing condition is not sufficient to warrant removal from the MIG. The Schedule requires that there must be compelling medical opinion that the applicant’s pre-existing conditions would prevent maximum medical recovery if kept within the MIG limits. In the present case, the applicant has not directed me to compelling medical opinion that speaks to same.

17In summary, I find that the applicant has not provided compelling medical evidence to establish that, on a balance of probabilities, his pre-existing condition would prevent him from maximal medical recovery if he were kept within the MIG.

b) Psychological impairment

18I find that the applicant has not proven, on a balance of probabilities, that he is suffering from an accident-related psychological impairment warranting removal from the MIG.

19The applicant submits that post-accident his prior diagnosis of major depressive disorder changed to major depressive disorder, chronic with cognitive impairment/chronic depression with cognitive impairment. The applicant further submits that his healthcare practitioners have given “many psychological diagnoses” that are not contained within the definition of a minor injury.

20The respondent submits that the applicant has not reported any psychological complaints to his family doctor, apart from two reports of depression. The respondent further submits that the applicant continues to take the same dosage of “Citalopram” that he did pre-accident.

21I am not satisfied on a balance of probabilities that he is suffering from a psychological injury, as a result of this accident, warranting removal from the MIG.

22I find that the CNRs of Dr. Mansour, as provided by the applicant, do document chronic major depressive disorder on several attendances starting in June of 2020. While the applicant argues that the diagnosis of major depressive disorder changed to “chronic” after the subject accident, I find the evidence shows otherwise.

23I note that Dr. Mansour’s records do not reference the subject accident in relation to the applicant’s depression. A clinical note of Dr. Mansour dated April 3, 2020, indicates that “given the COVID-19 and restriction of his activities he has been feeling more depressed and more anxious.” While the applicant does not provide CNRs of Dr. Mansour prior to July 12, 2016, the MDR summarizes a CNR of Dr. Mansour, dated January 7, 2016, wherein Dr. Mansour diagnosed the applicant with “major depressive disorder: moderate to severe intensity & chronic.” Again, on July 8, 2016, Dr. Mansour stated “[the applicant’s] major depressive disorder is considered to be chronic now.” Dr. Mansour also indicated that the applicant’s psychological symptoms are related to a physical injury he sustained in 2014. I find that the notes also show that Dr. Mansour continued to prescribe the same dosage of psychotropics pre- and post-accident.

24In sum, Dr. Mansour’s CNRs, as provided by the applicant, show consistent reporting of depression and medication. The applicant has not pointed to evidence that the applicant’s depression or psychological symptomology was improving prior to the accident or that his prescription changed after the accident.

25Moreover, I am not persuaded by the s. 25 report of psychologist, Dr. Peter Waxer, dated March 24, 2021, because although the report indicated that it was completed by “review of documentation”, it is not clear what documents were reviewed or whether Dr. Waxer was made aware of the applicant’s extensive psychological history. With respect to his prior psychiatric/psychological history, the applicant reported to Dr. Waxer that he met with a psychiatrist to “address confusion issues” and denied personal injuries or illnesses arising from a previous accident. I find this is inconsistent with his medical history, as set out above. While Dr. Waxer states that the applicant experiences depressive symptoms since the subject accident and feels sadness most of the time post-accident, I find that the weight of the evidence indicates that the applicant also experienced these feelings pre-accident.

26Put together, I am not persuaded by the diagnoses made by Dr. Waxer of major depressive disorder, severe, chronic adjustment disorder with mixed anxiety and depression mood, suicidal ideation and behaviour, persistent somatic symptom disorder with predominant pain, severe, and specific phobia, situational type vehicular, are accident-related. In my view, it appears they are concluded largely on the applicant’s self-reports, which I find are inconsistent with his prior medical history for the reasons set out above.

27I am also not persuaded by the catastrophic assessment report of psychologist, Dr. Sadiq Hasan, dated July 4, 2023. First, I find that Dr. Hasan noted Dr. Waxer’s report to be particularly important from a psychiatric perspective. It is unclear why Dr. Hasan singled out Dr. Waxer’s report, when the documents provided included a series of CNR summaries of Dr. Mansour, the applicant’s treating psychologist. Moreover, as I have noted above, I find the report of Dr. Waxer to be unpersuasive, and by extension, I find Dr. Hasan’s report to also be less persuasive given the reliance on Dr. Waxer’s report. Secondly, I find Dr. Hasan’s report to be inconsistent with the weight of the evidence related to the applicant’s pre-accident medical history. Dr. Hasan reports that the applicant “has a history of depression and anxiety following a previous accident in 2014. [The applicant] reported that he was almost fully recovered.” As I have indicated above, I find that Dr. Mansour’s CNRs do not show that the applicant was almost fully recovered prior to the subject accident. Lastly, in light of my findings on the applicant’s pre-accident conditions, I am not persuaded by the diagnosis made by Dr. Hasan of somatic symptom disorder, predominantly pain, persistent, moderate, major depressive disorder – moderate, and post-traumatic stress disorder (PTSD), are accident related. I find that there is evidence of severe somatic distress as early as September 10, 2014, identified in the MDR from a summary of psychological assessment of Dr. Benzimra. The applicant has also been previously diagnosed with PTSD, evidenced in a CNR of Dr. [O] “family physician”, dated March 6, 2015, within the MDR. Given the foregoing, I do not find the report of Dr. Hasan to be persuasive and place little weight on his report.

28In sum, I find the applicant has not proven, on a balance of probabilities, that he has sustained a psychological impairment as a result of the accident, that would warrant removal from the MIG.

c) Chronic pain

29I find that the applicant has not proven, on a balance of probabilities, that he is suffering from accident-related chronic pain.

30Chronic pain, if established, can remove an insured from the MIG, as chronic pain conditions are not captured by the definition of a “minor injury” within the Schedule. The Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain or chronic pain syndrome that causes functional impairment.

31The applicant submits that he has reported continued physical complaints to his various doctors and assessors. The applicant relies on the catastrophic orthopaedic assessment of Dr. Tajedin Getahun, dated June 13, 2023, who has given numerous diagnoses of chronic myofascial strain. The applicant also relies on the Tribunal decision in T.S. v Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) where it was held that chronic pain is “described as ongoing or recurrent pain, lasting beyond the usual course of acute illness of injury or more than 3 to 6 months, which adversely affect the individuals well being.”

32The respondent submits that the applicant has not proven he suffers from chronic pain as a result of the accident. The respondent argues that the applicant has not provided any medical opinions that comment on causation, and as such, he has not met his onus to prove that his ongoing pain complaints were caused by the accident rather than his well documented pre-existing chronic pain and lumbar spine degeneration.

33The evidence does not support a finding that the applicant has chronic pain with functional impairment as a result of the accident. I find that the CNRs of the applicant’s family practitioner, Dr. [O] show that the applicant attended on September 19, 2019, and May 28, 2021, with complaints of shoulder pain, and low back pain radiating to the left leg. Dr. [O] references a prior accident in 2014 and the subject accident in both of these attendances but does not comment on chronic pain. As such, I find that the CNRs of Dr. [O] do not separate the injuries sustained from either accident, and therefore, do not establish or support chronic pain as a result of the subject accident.

34I also find that the applicant’s pre-accident medical history, as summarized within the MDR shows that the applicant has made complaints of neck and back pain as early as December 2014. A CNR, dated March 15, 2016, of Dr. [O] “family physician”, indicates that the applicant has chronic low back pain worse pain with prolonged sitting, increased activity and bending, and numbness and tingling in the “L leg”. A CNR summary of Dr. [O], dated May 1, 2017, indicates left shoulder pain and spasms with decreased “ROM” and problems reaching. Moreover, Dr. [O] reported the applicant to have functional limitation evidenced in a CNR summary dated July 12, 2016, wherein the applicant’s physical restrictions and limitations prevent him from working because of his pain in the “foot, neck and back”. Therefore, given the applicant’s pre-accident medical sequelae, I find that the applicant’s chronic pain and functional impairments would have occurred but for the accident.

35In reaching this conclusion, I give little weight to the report of Dr. Getahun because it is unclear from this assessor’s report what injuries are directly attributable to the subject accident. Dr. Getahun notes that the applicant was involved in a previous accident in 2014 where he suffered injuries to his neck, back, and shoulders, and that the applicant had not fully recovered when he was involved in the subject accident. Dr. Getahun subsequently states that the applicant’s history and findings are compatible with specific injury to the cervical spine, thoracic spine, and lumbosacral spine. Despite this, and reviewing the MDR which indicated chronic injury, Dr. Getahun further states “apportionment would be inappropriate in this circumstance as it would completely discount his accident-related spinal impairments.” However, it is unclear what ‘spinal impairments’ are accident-related, rather than previously sustained impairments. As such, I am not persuaded that Dr. Getahun’s diagnosis of chronic myofascial strain to the cervical spine, thoracic spine, and lumbosacral spine, are accident related.

36The applicant bears the onus to prove, on a balance of probabilities, that he has sustained accident-related chronic pain with functional impairment that would warrant removal from the MIG. I am not bound by Tribunal decision, and I distinguish T.S, from the present case. As I have indicated above, I am not persuaded that the applicant’s chronic pain is accident-related.

37For these reasons, I find that the applicant has not met his burden in proving, on a balance of probabilities, that the has sustained accident-related chronic pain with functional impairment warranting removal from the MIG.

Conclusion

38For the aforementioned reasons, I find that the applicant is subject to the MIG.

Interest

39As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Award

40The 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.

41As there are no benefits owing, the applicant is not entitled to an award.

ORDER

42I find that:

i. The applicant remains within the MIG and is not entitled to the disputed OCF-18s. The applicant is not entitled to interest or an award.

ii. The application is dismissed.