Citation: Sterling v. Wawanesa Insurance, 2025 ONLAT 23-013562/AABS

Licence Appeal Tribunal File Number: 23-013562/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:

Aujah N Sterling

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Lisa Holland

APPEARANCES:

For the Applicant:

Kim Mohammed-Sieudhan, Paralegal

For the Respondent:

Louise A Kanary, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Aujah Sterling, the applicant, was involved in an automobile accident on August 6, 2022, 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:

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 $2,460.00 for a neurological assessment, proposed by Elite Specialist Group, in an OCF-18/ treatment plan (“plan”) dated August 15, 2023?

iii. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Elite Specialist Group, in a plan dated August 15, 2023?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonable withheld or delayed payments to the applicant?

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

RESULT

3The applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, it is not necessary to consider whether the treatment plans for a neurological assessment and a chronic pain assessment are reasonable and necessary.

4The applicant is not entitled to interest or an award.

ANALYSIS

The applicant has not sustained accident-related injuries that warrant removal from the MIG

5I find that the applicant has not demonstrated that she suffers from accident-related chronic pain with functional impairments. She has not demonstrated that she sustained impairments which warrant removal from the MIG.

6Section 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 in accordance with the MIG. 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.”

7An 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 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.

8I find that the applicant has not met her onus to prove that her accident-related impairments warrant removal from the MIG.

9The applicant submits that she sustained injuries to her neck, back, and right knee, as a result of the August 6, 2022 accident. The applicant further submits she was not involved in any prior accidents. The applicant submits that she should be removed from the MIG based on her diagnosis of chronic pain as a result of the August 6, 2022 accident.

10The applicant seeks removal from the MIG on the basis of her chronic pain. However, to support her assertion that she suffers from chronic pain, the applicant did not provide substantive submissions on the six criteria under the American Medical Association, Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) (“AMA Guides”). While not binding, the Tribunal has adopted the six criteria as a tool for assessing chronic pain claims, such as in 17-007825 v. Aviva Insurance Canada, 2018 CanLII 98282 (ONLAT).

11The applicant relies on the clinical notes and records (“CNR’s”) of Healthmedica Brampton and Streetsville Medical Centre in support of her position that she had persistent pain up until the date of the second accident in November 2023. However, the applicant ‘s only visit to her doctors at Streetsville Medical Centre before the second accident on September 20, 2023 does not support a finding of chronic pain.

12The applicant relies on a report dated January 29, 2024, by Dr. Osama Benmoftah, orthopaedic surgeon. I note that the only medical documentation reviewed by Dr. Benmoftah is a Disability Certificate (“OCF-3”) dated September 1, 2022 by Dr. Ranjit Sohal, chiropractor. In his report, Dr. Benmoftah indicates that the applicant was involved in a second accident in November 2023, in which she sustained injuries and aggravated injuries to her neck, back, both shoulders, right wrist, right hip and right knee. Dr. Benmoftah further indicates that the applicant suffers from pain and physical limitations as a result of both accidents. Dr. Benmoftah did not provide a separate opinion regarding the applicant’s injuries from the August 6, 2022 accident. I therefore place no weight on this report because the assessment took place after the November 6, 2023 accident and therefore, the report does not only speak to the impairments sustained by the applicant in the August 6, 2022 accident.

13The respondent submits that the applicant’s injuries to her neck, back, left shoulder, right wrist, and right knee are related to a subsequent motor vehicle accident occurring on November 6, 2023. The respondent points out that the applicant did not report the accident-related symptoms of neck, low back and right knee pain to her doctor at Streetsville Medical Centre until September 20, 2023, and most of the medical evidence from Streetsville Medical Centre and Healthmedica Brampton is related to the subsequent accident. Further, the respondent submits that the applicant has not provided medical documentation in support of a claim for chronic pain as a result of the August 6, 2022 accident to warrant removal from the MIG.

14I find that the applicant has not met her onus because the evidence that is before me relates to injuries from both the August 6, 2022 accident and the November 6, 2023 accident. I find that based on the CNR’s of Healthmedica Brampton and Dr. Benmoftah’s report, the applicant had returned to work after the August 6, 2022 accident, then stopped working after the November 6, 2023 accident.

15I agree that the applicant has not submitted medical documentation that supports her position that she should be removed from the MIG on the basis of chronic pain as a result of the August 6, 2022 accident. I find that there is minimal medical evidence to show that the applicant sustained any accident-related impairments beyond uncomplicated soft tissue injuries with no residual functional impairment. In addition, the applicant does not direct me to any CNRs of her treating physicians which mention any complaints of chronic pain with functional limitations as a result of the accident. I find that neither the CNR’s of Streetsville Medical Centre nor of Healthmedica Brampton mention that the applicant has been diagnosed with chronic pain, nor do the respective medical practitioners engage with the AMA Guides criteria in the absence of a diagnosis of chronic pain.

16Therefore, the applicant has not demonstrated that her accident-related injuries fall outside the MIG on the basis on chronic pain.

The applicant is not entitled to the disputed treatment plans

17Since I have found that the applicant’s accident-related injuries do not remover her from the MIG, and the MIG limits have been exhausted, it is not necessary for me to consider whether the plans are reasonable and necessary. The applicant is not entitled to the disputed treatment plans.

Interest

18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are payable, interest does not apply.

Award

19The applicant sought an award under s. 10 of Reg. 664 because the respondent unreasonably withheld or delayed payment of medical and rehabilitation benefits without considering the evidence. The applicant further submits that the respondent prejudiced the applicant and caused undue hardship in limiting her ability to obtain s. 25 assessments to substantiate her need for treatment.

20Under 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. I find an award is not appropriate because the applicant has not met her onus to explain how the respondent unreasonably withheld or delayed the payment of benefits. Thus, an award under s.10 of Reg. 664 is not warranted.

ORDER

21For the reasons set out above, I find that:

i. The applicant is subject to the MIG.

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

iii. The applicant is not entitled to interest, or an award.

iv. The application is dismissed.