Licence Appeal Tribunal File Number: 23-009136/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:
Richard Saunders
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Aric Bhargava
APPEARANCES:
For the Applicant: Rohan Haté, Counsel
For the Respondent: Morgan MacDonald, Counsel
HEARD: By way of written submissions
OVERVIEW
1Richard Saunders, the applicant, was involved in an automobile accident on October 29, 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, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2On February 12, 2024, a case conference took place for this matter and the Case Conference Report and Order (“CCRO”) dated February 15, 2024, set a 1-day videoconference hearing scheduled for September 17, 2024.
3On August 28, 2024, the applicant filed a Notice of Motion requesting that the Tribunal grant a motion order to convert the videoconference hearing to a written hearing. The respondent consented to the motion.
4The Motion Order dated August 28, 2024, granted the motion.
ISSUES
5The 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 $2,200.00 for a psychological assessment, proposed by Prime Healthcare in a treatment plan/OCF-18 (“plan”) submitted February 10, 2022?
iii. Is the applicant entitled to $2,705.53 for physiotherapy services, proposed by Prime Healthcare in a plan submitted March 21, 2022?
iv. Is the applicant entitled to $1,563.72 for shockwave therapy, proposed by Prime Healthcare in a plan submitted March 21, 2022?
v. Is the applicant entitled to $1,836.16 for chiropractic services, proposed by Prime Healthcare in a plan submitted May 25, 2022?
vi. Is the applicant entitled to $2,200.00 for a chiropractic pain assessment, proposed by Prime Healthcare in a plan submitted July 9, 2022?
vii. Is the applicant entitled to $1,606.16 for physiotherapy services, proposed by Prime Healthcare in a plan submitted June 30, 2022?
viii. Is the respondent liable to pay an award under s. 10 of Reg 664 because it unreasonably withheld or delayed payments to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
6The applicant advised that the claim for non-earner benefits listed in the Case Conference Report and Order (“CCRO”) has been withdrawn.
RESULT
7The applicant is subject to the MIG.
8As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
9As there are no overdue benefits, the applicant is not entitled to interest.
10The applicant is not entitled to an award under s. 10 of Reg 664 because no payments were unreasonably withheld or delayed.
ANALYSIS
Application of the Minor Injury Guideline
11I find the applicant’s injuries are predominantly minor injuries subject to treatment within the MIG.
12Section 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.”
13The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if he is kept within 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.
14The applicant submits that he has pre-existing conditions including chronic pain, sleep and mood disorder, and anxiety as a result of the accident and these issues prevent maximal recovery if he is kept within the MIG.
15The applicant relies on clinical notes and records (CNRs) of Dr. Zagros Niakan, family doctor; emergency room records; Dr. Grigory Karmy’s chronic pain report; and Dr. Jacqueline Brunshaw’s psychological pre-screen interview report that was prepared as part of a screening interview on February 4, 2022.
16The respondent submits the applicant’s injuries are within the MIG and that he has no pre-existing neurological or psychological conditions that were affected by or resulting from the accident that warrant removal from the MIG.
Does the applicant have pre-existing conditions that prevent maximal recovery?
17I find the applicant has not met his onus in demonstrating his pre-existing conditions prevent maximal recovery.
18The applicant argues that he had a pre-existing diagnosis of chronic lower back, right shoulder, and left knee pain that were aggravated due to the accident. He relies on the CNRs of Dr. Zagros Niakan, family doctor with Kipling Heights Medical Center, and the chronic pain assessment prepared by Dr. Grigory Karmy, chronic pain physician.
19The s. 25 chronic pain assessment prepared by Dr. Grigory Karmy, chronic pain physician, dated January 11, 2024 noted the applicant’s pre-existing conditions include myofascial pain and inflammation in the left temporomandibular joint, lower back and right knee injury from a 2009 work incident, right knee meniscus radial tear, and bilateral knee pain.
20I place less weight on Dr. Karmy’s report because the assessment took place over two years after the accident and the report does not state what is preventing the applicant from achieving maximal recovery within the MIG. Dr. Karmy noted “As a result of the subject MVA on October 29, 2021, [the applicant’s] pre-existing chronic lower back, right shoulder, and left knee pain was significantly aggravated.” Dr. Karmy’s report lacks compelling evidence why the applicant cannot achieve maximal recovery within the MIG.
21Dr. Karmy states the applicant had to take time off work and “was completely unable to work for a few days” due to “significant pain flare ups” and “his employability is in jeopardy”, however, he has not directed me to evidence in support of these claims, or that his pre-existing conditions were the cause of his inability to work, or relating to his employability. Dr. Karmy relies on the American Medical Association (AMA) Guides and states the applicant meets four of the six criteria:
i. Use of prescription drugs beyond the recommended duration and/or abuse of, or dependence on, prescription drugs or other substances.
ii. Excessive dependence on health care providers, spouse, of family.
iii. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain.
iv. Withdrawal from the social milieu, including work, recreation, or other social contacts.
v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs.
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
22The report states the applicant meets criteria ii), iii), iv) and xi). The report states the applicant is excessively dependent on his spouse and daughter to help with household chores because he suffered pain flare-ups (second criterion), however, I was not directed to evidence to support this. The report also goes on to state the applicant became more dependent on his family “following the more recent subject accident of December 30, 2022”, meaning the more recent accident was the more probable cause of his dependence, not the accident of October 29, 2021.
23The s. 25 report states the applicant has secondary physical deconditioning and avoidance of physical activity due to pain (third criterion); withdrawn from social milieu, including work (fourth criterion); failure to restore pre-injury function such that the capacity is insufficient to pursue work, family, or recreational needs (fifth criterion); development of psychosocial sequalae (sixth criterion). However, the applicant did not submit evidence to support these claims. On the third, fourth and fifth criterion, the applicant returned to work a few days following the accident and his employment timesheets show that he has continued with work without excessive time off work throughout this period. The applicant has not demonstrated how his pre-existing conditions have prevented maximal medical recovery.
24Dr. Karmy’s report states, “Due to pre-existing conditions, the claimant cannot achieve maximal medical recovery if he is treated within the MIG cap.” I place less weight on Dr. Karmy’s report because the report states the denial of service prevents the applicant from achieving maximal recovery and does not provide reasoning why the applicant cannot achieve maximal recovery within the MIG. While the report lists the applicant’s pre-existing conditions it lacks a compelling explanation on why the applicant cannot recover within the MIG limits.
25I find the applicant has not met his burden to prove his pre-existing condition will prevent him from achieving maximal recovery under the MIG.
Does the applicant have chronic pain with functional impairment?
26I find the applicant does not have chronic pain with a functional impairment that would remove him from the MIG.
27The applicant submits he has developed chronic neck, upper and mid back pain, as well as chronic chest pain and chronic headaches. The applicant argues that his chronic pain was aggravated by the accident. The applicant relies on the CNRs of Dr. Niakan, family doctor, the psychological pre-screen interview report prepared by Dr. Jacqueline Brunshaw, psychologist, and Dr. Karmy’s s. 25 chronic pain report.
28Dr. Niakan’s CNRs show the applicant visited his family doctor seven times from November 2021 to July 2022 regarding his accident-related pain in his neck, back, chest, spine, and shoulder. The doctor advised caution with lifting at work and the applicant continued to manage his sprain and strain injuries from the accident pain with physiotherapy. The applicant did not direct me to evidence of a functional impairment.
29I assign less weight to Dr. Brunshaw’s pre-screen interview report dated February 4, 2022, some 15 months after the accident because it is a “consultation interview” with no objective measures included in the assessment and no evidence of functional impairment was submitted to support Dr. Brunshaw’s conclusions.
30I assign less weight to Dr. Karmy’s s.25 chronic pain report because the report provides no evidence to support of the claims of functional impairment. The report stated the applicant “was completely unable to work for a few days” due to his accident-related injuries and pain, however, no evidence was submitted in support of this claim. The applicant has maintained a steady and ongoing presence with his work which requires lifting heavy materials and twisting. His weekly timesheets show that he has continued to attend work, and the applicant has not submitted evidence for accommodation or extensive time off due to chronic pain or impairment from the accident. I find the applicant has pain consistent with the sprain and strain injuries resulting from the accident.
31Dr. Karmy’s report stated the applicant is not able to participate in household activities, he is no longer able to take care of himself as easily as before the accident, he has difficulty playing with his children and does not socialize as much due to the pain. However, the applicant did not direct me to evidence in support of this claim.
32I find on a balance of probabilities that the applicant does not have chronic pain with a functional impairment that occurred as a result of the accident, or that he should be removed from the MIG on this basis.
Does the applicant have a psychological impairment?
33I find that the applicant has not met his burden to prove that he suffers from a psychological impairment that would warrant removal from the MIG.
34The applicant submits that he has sleep issues, difficulty focussing, has become forgetful and has difficulties coping with changes since the accident. The applicant relies on Dr. Karmy’s s. 25 report and Dr. Jacqueline Brunshaw’s psychological pre-screen interview report.
35I find Dr. Karmy’s chronic pain assessment provides limited insight into the applicant’s psychological impairments because the only tests conducted were part of a physical examination.
36Dr. Brunshaw, clinical psychologist, noted in her psychological pre-screen interview report that she met with the applicant on February 4, 2022, some 15 months after the accident. Dr. Brunshaw’s report stated this report “is meant to simply determine if a more complete examination and [psychological] assessment is required.” Dr. Brunshaw noted the applicant’s symptoms included feelings of pain, disruption of sleep, frustration, irritability, social withdrawal, memory and concentration difficulties, nervousness while travelling in vehicles.
37I place less weight on Dr. Brunshaw’s report because the report does not provide details of any objective tests that were conducted or how she reached her conclusions and diagnosis.
38I do acknowledge that the applicant reported to Dr. Niakan, his family doctor, on one occasion that he felt sad after the accident, he sometimes was at a loss in finding the correct words and he was not sleeping well. While I am alive to the applicant’s feelings regarding the accident there were no other reports or diagnosis provided to establish the applicant has psychological impairments due to the accident.
39I find on a balance of probabilities that the applicant has not met his burden to establish that he has a psychological impairment as a result of the accident.
Are the treatment plans reasonable and necessary?
40Having found that the applicant is subject to the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.
Interest
41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owed, no interest is payable.
Award
42The 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
43I find an award is not appropriate. The applicant did not submit an argument for an award, and it was not referred to in its reply submissions. As a result, no award is payable.
ORDER
44The applicant is subject to the MIG.
45As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
46As there are no overdue benefits, the applicant is not entitled to interest.
47The applicant is not entitled to an award under s. 10 of Reg 664 because no payments were unreasonably withheld or delayed.
48The application is dismissed.
Released: June 5, 2025
Aric Bhargava
Adjudicator