Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-006747/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:
Wayne Edward
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Greg Witt
APPEARANCES:
For the Applicant: Marina Korshunova, Paralegal
For the Respondent: Branson Wong, Counsel
HEARD: In Writing
OVERVIEW
1Wayne Edward, the applicant, was involved in an automobile accident on August 21, 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, Aviva General 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 limit?
ii. Is the applicant entitled to $1,873.52 for physiotherapy services, proposed by Physiomed Airport Inc., in a treatment plan dated January 20, 2022?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3The parties resolved issue 2 [iii] listed above. The applicants submissions confirmed that he would not be proceeding with this issue.
RESULT
4I find that:
i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline;
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”)
5The 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.”
6Section 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.
7An 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.
8The parties agreed that the MIG limits have been exhausted.
9It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The applicant submits he suffers from a chronic pain impairment of his left wrist, which is not included in the definition of a minor injury. The respondent submits that the applicant has failed to establish that his injuries are not predominately minor and that the injuries can be treated within the confines of the MIG.
Chronic Pain and Left Wrist Impairment
10For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that their accident-related injuries had a detrimental impact on their 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 shows the applicant’s functionality is impaired and that the chronic pain is the cause of the disability.
11The applicant submits that he has suffered ongoing chronic pain in his left wrist as a result of the accident. The applicant submits that during an appointment with Dr. Tooba Zahid, family physician, on September 8, 2021, he reported left wrist pain. Dr. Zahid prescribed a muscle relaxant and referred the applicant for an x-ray and ultrasound. The x-ray of the applicant’s left shoulder, elbow and wrist found no fracture or dislocations, but did identify carpometacarpal (CMC) joint arthritis in the left wrist. Subsequent x-rays and ultrasounds taken of the applicant’s left wrist on January 13, 2022, again, found no significant abnormalities.
12The applicant also relies on two medical referrals by Dr. Zahid. On February 24, 2022, the applicant was referred to and assessed by Dr. Neil Verma, chronic pain specialist, following reports of left wrist pain, which the applicant submits was negatively affecting his functional ability. Dr. Verma recommended Voltaren for pain relief. Dr. Verma’s impression was of simple myofascial pain in the left arm.
13On December 13, 2022, the applicant was referred to and assessed by Dr. Laura Kember, orthopaedic surgeon. Dr. Kember assessed the applicant and performed a Phalen’s test. Dr. Kember opined that the applicant’s pain had features of arthritis. Dr. Kember referred the applicant for an EMG and MRI study of his left wrist, which revealed evidence of moderate to severe carpal tunnel syndrome. The applicant was assessed by Dr. Kember again on March 21, 2023, and on October 31, 2023, who opined that the imaging results indicate osteoarthritis and carpal tunnel syndrome. Dr. Kember does not state that this pain is related to or caused by the accident.
14The respondent submits that the applicant’s injuries were not caused by the accident, but by chronic diseases or issues unrelated to the accident. It is the respondent’s position that the connection between the applicant’s post-accident wrist symptoms and the accident does not exist. The respondent references an email dated May 3, 2022 from the applicant’s lawyer to Dr. Zahid asking for a medical note stating that the applicant’s left wrist issues are related to the accident. In reviewing the entirety of the clinical notes and records (“CNRs”) of Dr. Zahid in the file, no such medical note was produced, but rather there is a recommendation to continue with physiotherapy. The CNRs of Dr. Zahid reveal that the applicant made self-reports of pain, but the opinion of Dr. Zahid is that the applicant’s left hand/wrist had normal range of motion, normal strength, intact neurovascular status, no obvious deformity, and pain on palpation.
15The respondent highlights that Dr. Zahid assessed the applicant with osteoarthritis of the 1st carpometacarpal joint and moderate to severe osteoarthritic change at the lunocapitate articulation. In the CNRs Dr. Zahid does not draw a link between the applicant’s symptoms and the accident, but rather to degenerative changes.
16The respondent also relies on the February 21, 2023 consultation and electromyography test by Dr. Layla Safinia, a neurologist. Dr. Safinia found that the MRI revealed osteoarthritic changes and mild tendinopathy, with results consistent with carpal tunnel syndrome. Dr. Safinia also opined that the EMG findings could be incidental and unrelated to the applicant’s recent injury.
17The respondent also obtained a section 44 report from Dr. Riaz Moolla dated March 9, 2022, and two addendum reports dated April 27, 2022, and March 14, 2023. Dr. Moolla opined that the applicant had sustained a left wrist sprain and strain injury as a result of the accident, and his injuries were minor.
18I find that the applicant has not satisfied his burden of establishing that the accident caused his carpal tunnel syndrome. Based on the consistent post-accident medical evidence of Dr. Zahid, Dr. Verma and Dr. Moolla, I am persuaded that the applicant sustained some injury to his left wrist, but those injuries were soft tissue sprain and strain injuries. Dr. Moola specifically opined the applicant’s injuries were minor in his March 14, 2023 report.
19I acknowledge that the applicant has a left wrist injury and has been referred to medical specialists and undergone numerous imaginings to confirm that the applicant does in fact have carpal tunnel syndrome, but the medical specialists did not attribute the development of carpal tunnel syndrome to the accident. This gap is further highlighted by the applicant’s counsel specifically requesting that Dr. Zahid provide a medical note linking his left wrist injuries to the accident.
20I find that the applicant has not provided persuasive medical evidence to draw a causal link between the accident and the carpal tunnel syndrome. I am further persuaded by this as Dr. Safinia opined that the carpal tunnel syndrome was incidental and unrelated to the applicant’s accident.
21Lastly, with regards to a chronic pain condition, the applicant was not diagnosed with chronic pain, nor was there persuasive medical evidence presented that the applicant suffered a functional impairment.
22Accordingly, I find that the applicant has not demonstrated that removal from the MIG is warranted.
23The applicant is not entitled to the disputed treatment plan because I find that the applicant has sustained a minor injury and is subject to the MIG, and the parties agreed the MIG has been exhausted. As a result, an analysis of whether the treatment plan is reasonable and necessary is not required.
Interest
24Given that there are no overdue payments of benefits, the applicant is not entitled to interest.
ORDER
25The 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.
Released: April 14, 2025
__________________________
Greg Witt
Adjudicator