Licence Appeal Tribunal File Number: 22-011705/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:
Carrie Ann Ferreira
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Maziar Mortezaei, Counsel
For the Respondent:
Nicholas M. Wine, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Carrie Ann Ferreira (“the Applicant”) was involved in an automobile accident on October 7, 2020, and sought benefits from Wawanesa Mutual Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The Respondent characterized the Applicant’s injuries as falling within the definition of “minor injury” as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute. The Respondent also denied the Applicant’s claim for income replacement benefits (“IRBs”). The Applicant disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues to be decided in the hearing are:
Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit for a minor injury?
Is the Applicant entitled to medical benefits proposed by East Sheppard Rehabilitation Clinic as follows:
a) $810.71, for a physiotherapy plan, dated November 30, 2020?
b) $962.67, for a physiotherapy plan, dated February 23, 2021?
c) $2,894.33, for a physiotherapy plan, dated March 16, 2021?
d) $2,111.41, for a physiotherapy plan, dated May 13, 2021?
e) $1,603.57, for a physiotherapy plan, dated July 19, 2021?
f) $1,270.27, for a physiotherapy plan, dated August 3, 2021?
g) $1,270.27, for a physiotherapy plan, dated August 26,2021?
h) $2,641.62, for a physiotherapy plan, dated October 8, 2021?
- Is the Applicant entitled to medical benefits relating to the cost of the following examinations recommended by East Sheppard Rehabilitation Clinic as follows:
a) $998.88 for an in-home assessment plan, dated December 3, 2020?
b) $2,100.00 for a psychological assessment plan, dated December 14, 2020?
c) $1,293.80 for a functional abilities evaluation plan, dated January 12, 2021?
d) $2,000.00 for an orthopaedic assessment plan, dated January 26, 2021?
e) $2,000.00 for a neurological assessment plan, dated March 8, 2021?
f) $2,000.00 for a chronic pain assessment plan, dated March 8, 2021?
Is the Applicant entitled to income replacement benefits (“IRBs”) in the amount of $193.40 per week for the period from October 28, 2020, to May 17, 2021?
Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
4The Applicant sustained a minor injury as a result of the accident. She is subject to the MGI and the $3,500.00 funding limit for a minor injury.
5The Applicant is not entitled to the plans in dispute because the plans propose goods and services outside of the MIG.
6The Applicant is not entitled to IRBs.
7No interest is payable.
BACKGROUND
8The Applicant was seat-belted in a parked vehicle which was struck by another vehicle. No police or ambulance attended at the scene of the accident and the Applicant was able to drive her vehicle to the collision reporting centre after the accident. She sought no medical attention on the day of the accident, but attended at the hospital a day later, with complaints of headaches, neck, and back pain. She was examined at the hospital and diagnosed with sprain and strain injuries and was discharged after x-rays showed no acute injury.
9The Applicant started therapy with Dr. P. Bruni, chiropractor, about a week after the accident, pursuant to the MIG. There is no evidence before me to indicate that she has followed up with her family physician or the hospital with respect to any accident-related complaints.
10The Applicant claims that she has since developed chronic pain as a result of the accident and submits that this is not an injury in the minor injury definition. Thus, she should not be subject to the MIG. She also claims that she is disabled from working as a result of the accident.
11For the following reasons, I find that the Applicant sustained a minor injury as a result of the accident. She is not entitled to the plans in dispute, nor IRBs, interest, or an award.
ANALYSIS
Minor Injury Guideline (“MIG”)
12The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
13The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.
No pre-existing health condition precluding recovery
14I find that the Applicant has not demonstrated that she suffers from a pre-existing health condition which would preclude her recovery within the MIG and the $3,500.00 funding limit for a minor injury.
15The Applicant gave birth to a child about a month prior to the accident. She required an epidural during the delivery and experienced post-delivery back pain which she attributes to the epidural. She suggests that this will preclude her recovery if she is subject to the MIG. The Respondent submits that the Applicant has not provided any medical documents to support her claim that her pre-existing back pain from an epidural will preclude her recovery within the MIG.
16I find that no compelling medical evidence to support the Applicant’s claim that her maximal recovery would be precluded if subject to the MIG and the $3,500.00 funding limit. Dr. Bruni is the only medical professional to opine that the Applicant’s post-epidural back pain would preclude her recovery. I give this opinion less weight because it is anomalous with the rest of the medical evidence. Further, Dr. Bruni’s opinion on the affect of the epidural on the Applicant’s recovery is made without any consultation of the Applicants obstetric or family physician’s records. Accordingly, I give less weight to Dr. Bruni’s opinion.
17None of the Applicant’s other healthcare providers indicated that the post-epidural back pain would affect the Applicant’s recovery in any way. The Applicant has not met with her family physician for any accident-related issue following the accident. No obstetrical records are before me to form a basis that her post-epidural back pain precluded her recovery from the sprain and strain injuries sustained in the accident.
18The assessment reports before me all conclude that the Applicant’s pre-existing condition would not preclude her from achieving maximal recovery within the MIG. Physiotherapist V. Yip assessed the Applicant and issued a report, dated July 16, 2021. Physiotherapist Yip opined that the Applicant demonstrated normal range of motion (“ROM”) throughout her body, but for some decreased mobility in her shoulders. However, physiotherapist Yip also noted that the Applicant exhibited self-limited behaviour before providing maximal effort. Dr. E. Silver, physician, assessed the Applicant and issued reports dated February 11, and June 2, 2021. Both those reports included a review of the Applicant’s medical documents and in-person examination. On examination, Dr. Silver observed that the Applicant demonstrated nearly full back, neck, and shoulder ROM and found no objective evidence of an accident-related musculoskeletal impairment. Dr. Silver concluded that the Applicant sustained a minor injury and opined that the epidural back pain pre-dating the accident does not preclude her recovery within the MIG.
19Accordingly, I find that the Applicant does not suffer from a pre-existing health condition which would preclude her recovery if subject to the MIG.
No compelling evidence of a chronic pain condition
20I find that the Applicant has not demonstrated that she suffers from a chronic pain condition as a result of the accident.
21As noted previously, I find Dr. Bruni’s opinion to be anomalous to the balance of the Applicant’s medical records. Dr. Bruni is the only healthcare provider to opine that the Applicant suffers from a chronic pain condition as a result of the accident. The February 12, 2021 letter from Dr. Bruni to the Respondent, seeking approval for treatment outside the MIG, is the only indication that the Applicant suffers from a chronic pain condition. This is uncompelling because Dr. Bruni has not demonstrated how this conclusion was arrived at, other than stating that the Applicant has not recovered within the usual recovery time for uncomplicated soft tissue injuries. Additionally, Dr. Bruni states that the Applicant demonstrates radicular symptoms, which is contradicted by Dr. Silver in the reports dated February 11, and June 2, 2021. Dr. Bruni also states that the Applicant’s limits and restrictions affect her ability to work, complete housekeeping duties, and social endeavors. Yet, Dr. Bruni does not explain what is limiting or restricting the Applicant from those activities and relies entirely on the Applicant’s self-reporting with respect to these limitations.
22The Applicant does not meet the criteria for a chronic pain condition, as outlined in the American Medical Association Guides to the Evaluation of Permanent Impairment (the “AMA Guides”). While it is not part of the Schedule, the Tribunal has generally accepted the AMA Guides when assessing whether a person suffers from a chronic pain condition. To meet the criteria, the person must demonstrate that they likely meet three of the following six criteria: withdrawal from social milieu (including work, recreation, or other social contracts); use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription dugs or other substances; development of psycho-social sequalae after the initial incident; excessive dependence on healthcare providers, spouse, or family; secondary physical deconditioning due to disuse; and a failure to restore pre-injury function after a period of disability.
23Here, the Applicant was on parental leave at the time of the accident and there is no evidence that she has withdrawn from work or social milieu as a result of the accident. She is not abusing or dependent on prescription or other medication, she is not dependent on healthcare providers, she has not demonstrated secondary physical deconditioning or a failure to restore her pre-accident function. At most, the Applicant has reported psycho-social symptoms, but as will be discussed, it does not rise to the level to warrant a DSM-5 diagnosis. Accordingly, I find that she has not demonstrated that she suffers from a chronic pain condition as a result of the accident.
No evidence of an accident-related psychological injury
24I find that the Applicant has not demonstrated that she suffers from an accident-related psychological injury which warrants treatment outside of the MIG.
25Despite her submissions briefly touching on the subject, the Applicant has led no evidence indicating that she suffers from a psychological injury. While Dr. Bruni listed some psychological symptoms in claims documents, the diagnosis of psychological impairments is outside the scope of a chiropractor. There are no accident-related complaints in the Applicant’s family physician’s record. She has not seen a specialist to address psychological injuries, other than IE assessor, Dr. T. Dumitrascu, psychologist. On examination, Dr. Dumitrascu observed that the Applicant exhibited some emotional symptoms but results were marred by the inconsistency in the Applicant’s endorsements on different psychometric measures. Dr. Dumitrascu concluded that the Applicant did not meet the criteria for a psychological disorder.
26Accordingly, I accept Dr. Dumitrascu’s opinion and find that the Applicant does not suffer from a psychological impairment as a result of the accident. The Applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 funding limit for a minor injury.
The Applicant is not entitled to the treatment and assessment plans
27The treatment and assessment plans in dispute propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury. The Applicant is not entitled to these benefits because she sustained a minor injury and is limited to benefits within the MIG and the $3,500.00 funding limit.
Income Replacement Benefits (“IRBs”)
28I find that the Applicant has not demonstrated that she is entitled to IRBs.
29The Applicant was on parental leave from her role as an educational assistant and cleaner at a hospital at the time of the accident. In Dr. Silver’s IE report issued February 11, 2021, it notes that the Applicant reported that she anticipated a return to work as an educational assistant in September 2021, and prior to the accident worked approximately 30 hours per week in that role. She is also noted to have reported that she worked approximately 15 hours per week as a cleaner. The Applicant returned to work as an educational assistant earlier than expected, on May 17, 2021, she reports that since the accident she has not returned to work as a cleaner.
30The Applicant has not demonstrated that she is unable to complete her essential tasks of employment as a result of the accident. The Applicant submits that she was unable to work as an educational assistant and cleaner due to her accident-related injuries, but there is no evidence to support that claim and no medical practitioner has recommended that she refrain from working. The disability certificate completed by Dr. P. Bruni, chiropractor, dated October 16, 2020, holds no weight because it does not indicate what the essential tasks of the Applicant’s employment are and denies that the Applicant was receiving Employment Insurance benefits at the time of the accident, despite the fact that she was receiving parental leave benefits at the time.
31I also find no medical basis for the Applicant to refrain from working as an educational assistant or a cleaner. There are no recommendations before me to corroborate Dr. Bruni’s conclusion that the Applicant is disabled from working. The Applicant has not directed me to any other evidence, such as CNRs from her family physician, that indicate that she is disabled from working. Instead, it appears that her time off work is related to primarily to the birth of her child, which occurred about a month prior to the accident, the Covid-19 pandemic, or on her own accord. The Applicant reported to Dr. Silver that, prior to the accident, her family physician advised her to cease working as a cleaner until the pandemic ends. In the same assessment, the Applicant also reported that she has not returned to her job as a cleaner because she is concerned that the heavy lifting requirements of the job may provoke pain symptoms. Thus, I find on a balance of probabilities that her leave from her work as a cleaner is not as a result of the accident.
32The Applicant demonstrates sufficient function to return to her employment as an educational assistant and cleaner at a hospital. As noted previously, physiotherapist Yip opined that the Applicant demonstrated normal ROM throughout her body, but for some decreased mobility in her shoulders, and that she exhibited self-limited behaviour before providing maximal effort. Similarly, Dr. Silver, concluded that the Applicant does not suffer from an accident-related injury or impairment that results in a substantial inability to perform the essential tasks of an educational assistant or cleaner.
33Accordingly, I find that the Applicant has not met her onus to demonstrate that she is entitled to IRBs as a result of her accident-related injuries.
Interest
34Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.
CONCLUSION AND ORDER
35The Applicant sustained a minor injury as a result of the accident. She is subject to the MIG and the $3,500.00 funding limit for a minor injury.
36The Applicant is not entitled to the plans in dispute because they propose goods and services that fall outside the MIG and beyond the $3,500.00 funding limit for a minor injury.
37The Applicant is not entitled to IRBs.
38No interest is payable.
39The Application is dismissed.
Released: April 10, 2025
__________________________
Brian Norris
Adjudicator