Licence Appeal Tribunal File Number: 24-008218/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:
Stephanie Caldarola
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Michael Ferrante, Paralegal
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Stephanie Caldarola, 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:
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? Note: The parties agree the MIG limits have been exhausted.
Is the applicant entitled to a non-earner benefit of $185.00 per week from September 3, 2022 to September 3, 2024?
Is the applicant entitled to $2,194.72 ($3,087.14 less $892.42) for physiotherapy services, proposed by Lifepoint Medical Inc. in a treatment plan/OCF-18 (“plan”) submitted August 3, 2023?
Is the applicant entitled to $4,276.00 for a physiotherapy assessment, proposed by Dynamic Physiotherapy in a treatment plan submitted September 19, 2024?
Is the applicant entitled to the services proposed by Safe Space, as follows:
i. $3,690.76 for a chiropractic services, in a treatment plan submitted October 2, 2023; and
ii. $3,710.00 for psychological services, in a treatment plan submitted May 17, 2024?
- Is the applicant entitled to the assessments proposed by Safe Space, as follows:
i. $2,000.00 for a psychological assessment, in a treatment plan submitted January 9, 2024; and
ii. $2,200.00 for a psychological assessment, in a treatment plan submitted November 1, 2023?
Is the applicant entitled to $9,520.00 for assistive devices, proposed by Dynamic Physiotherapy in a treatment plan submitted September 30, 2024?
Is the applicant entitled to interest on any overdue payment of benefits?
3In her written hearing submissions, the applicant confirmed that she was withdrawing Issue 8 as listed in the Case Conference Report and Order.
RESULT
4The applicant’s accident-related impairments are predominantly minor, and she is therefore subject to treatment within the $3,500.00 limit of the MIG.
5The applicant is not entitled to non-earner benefits, the treatment plans in dispute or interest.
ANALYSIS
Minor Injury Guideline
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”
7An insured person 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. The applicant submits that she should be removed from the MIG due to her accident-related carpal tunnel syndrome, psychological impairments and chronic pain.
The applicant has not established physical impairments warranting removal from the MIG
8The applicant argues that as a result of the accident, she has sustained a non-minor physical impairment, being carpal tunnel syndrome. She submits that injuries involving radiculopathy or other neurological deficits are excluded from the MIG. The applicant relies on the clinical notes and records (“CNRs”) of her family doctor Dr. Sakunthala Ponrajah which noted numerous physical impairments post-accident, including: carpal tunnel syndrome, bilateral shoulder pain, lower back, sacroiliac and neck pain, left wrist pain, right foot and ankle pain, right hip pain and occasional headaches. Ultrasound imaging found carpal tunnel syndrome and the applicant was referred to MacKenzie Spine and Brain Associates, where carpal tunnel was confirmed with electrodiagnostic testing.
9The respondent submits that most of the applicant’s physical complaints are not related to the accident. It argues that the family doctor records reveal only a left shoulder strain as a result of the accident, but that the applicant began to raise other unrelated physical impairments in the years post-accident, being: left wrist sprain (four months post-accident); right shoulder pain (seven months post-accident); cervical sprain (seven months post-accident); lower back pain and right hip pain (16 months post-accident); bilateral foot pain (almost two years post-accident). The respondent submits that carpal tunnel syndrome, diagnosed a year post-accident, was not accident related.
10I find that the applicant has not established that her bilateral carpal tunnel syndrome was caused by the accident.
11Upon review of the CNRs of the applicant’s family doctor Dr. Ponrajah, I find that the timing of the carpal tunnel syndrome symptoms do not support the applicant’s position that the impairments were caused by the accident. In the first few months post-accident, the applicant complained only of left shoulder, arm, and upper back pain. She was diagnosed by Dr. Ponrajah with thoracic myofascial strain and left shoulder strain. The applicant first reported any hand or wrist pain four months post-accident on December 29, 2022. In this CNR entry, Dr. Ponrajah did not appear to link this left wrist sprain to the accident. No further hand or wrist issues were reported until May 1, 2023, when the applicant reported numbness in both hands to Dr. Ponrajah. This was almost a year post-accident, and Dr. Ponrajah did not appear to link these symptoms to the accident.
12The applicant was assessed on September 5, 2023 by Dr. Basile at MacKenzie Spine and Brain Associates. Nerve conduction tests revealed no evidence of cervical radiculopathy, ulnar nerve neuropathy or neurogenic thoracic outlet syndrome. Rather, the nerve conduction tests revealed bilateral carpal tunnel syndrome of the median motor nerve. I note that Dr. Basile found that the applicant suffered from carpal tunnel syndrome of both hands, however, the applicant did not report any injury to her right side after the accident. Rather, the first report of any right arm or shoulder pain was more than six months post-accident. I further note that the applicant has submitted a chronic pain report into evidence dated August 17, 2024. In this report, Dr. Getahun notes the applicant’s accident-related complaints, and carpal tunnel syndrome or hand and wrist impairments are not identified.
13Accordingly, I do not find that the medical record establishes that the applicant sustained bilateral carpal tunnel syndrome as a result of the accident, to warrant removal from the MIG.
The applicant has not established an accident-related psychological condition
14The applicant argues that she should be removed from the MIG on the grounds of a psychological impairment.
15She relies on a psychological prescreening report dated October 24, 2023 which made provisional diagnoses of posttraumatic stress disorder (PTSD), adjustment disorder with mixed anxiety and depressed mood, and specific phobia, situational type. A complete psychological assessment was recommended. The subsequent psychological assessment report dated March 22, 2024 diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, persistent, major depressive disorder, single episode, moderate, somatic symptom disorder, with predominant pain, persistent and specific phobia situational type, motor vehicle.
16The respondent submits that the applicant has not established any psychological impairments as a result of the accident. It argues that the psychological assessment was conducted online by a psychotherapist, not a psychologist, more than 18 months post-accident. The respondent further submits that the numerous psychological diagnoses in the report are contradicted by the family doctor’s records, and that the family doctor’s records should be given more weight.
17I find that the applicant has not met her onus to prove, on a balance of probabilities, that she sustained a psychological impairment as a result of the accident. I agree with the respondent that the objective medical record, particularly the CNRs of her family physician, do not support accident-related psychological impairments.
18The applicant does not direct me to any CNR entry where she reported psychological symptoms as a result of the accident. In the first 16 months post-accident, no psychological symptoms are noted in Dr. Ponrajah’s records. On December 5, 2023, almost a year and half post-accident, the applicant reported that she had suffered from anxiety for 10 years, in social settings and at work. The applicant reported feeling anxious over trivial things, and Dr. Ponrajah diagnosed the applicant with generalized anxiety disorder, and recommended counselling. However, I note that this was not linked to the accident. Similarly, on December 10, 2023 the applicant’s anxiety symptoms were linked to work and social settings, and Dr. Ponrajah noted that it was interfering with the applicant’s work performance.
19Although the applicant relies on the psychological pre-screening report dated October 24, 2023 and the psychological assessment report dated March 22, 2024, the psychological diagnoses referenced therein are not supported by the family doctor’s records. I agree with the respondent that the applicant regularly visited her family doctor for a wide variety of impairments, and in fact specifically mentioned psychological impairments due to non-accident related causes. However, I have not been directed to any evidence in Dr. Ponrajah’s CNRs that psychological impairments were reported as a result of the accident. I place greater weight on Dr. Ponrajah’s records than on the pre-screening and assessment report, given the fact that Dr. Ponrajah has been the applicant’s treating family doctor for years, both pre-and post-accident.
20Upon review of the medical record, I find that the applicant has not met her onus to prove, on a balance of probabilities, that she sustained a psychological impairment as a result of the accident.
The applicant has not established chronic pain as a result of the accident
21The applicant submits that she should be removed from the MIG due to her accident-related chronic pain. She argues that the CNRs of Dr. Ponrajah established musculoskeletal pain, bilateral shoulder pain, right hip pain, lower back and sacroiliac joint pain, neck pain, left wrist pain and carpal tunnel syndrome, right foot and ankle pain and right gluteal and thigh pain.
22Further, the applicant relies on a chronic pain report dated August 17, 2024, where Dr. Getahun diagnosed the applicant with chronic myofascial strain – cervical, lumbosacral and bilateral shoulder, together with chronic pain syndrome. Dr. Getahun found that the applicant had met three out of the six criteria for diagnosing chronic pain under the American Medical Association’s (AMA) Guides, 6th edition.
23The respondent argues that the applicant has not established chronic pain to warrant removal from the MIG. It submits that most of the applicant’s pain complaints were not related to the accident, and that diagnostic imaging of the applicant’s neck, back, wrist and feet found that the cause of the applicant’s pain was degenerative changes, not the accident. The respondent further submits that the applicant has not met any of the criteria for establishing chronic pain under the AMA Guides.
24I find that the applicant has not met her onus to prove, on a balance of probabilities, that she suffers from chronic pain as a result of the accident.
25As previously noted, I have found that a number of the applicant’s pain complaints were not linked to the accident. The applicant’s reports of right shoulder pain, hip, leg, feet and lower back pain were first reported anywhere from seven months to two years post-accident. In my view, the timing of these pain complaints does not support them being related to the accident.
26With respect to the applicant’s remaining pain complaints, she relies on the chronic pain report of Dr. Getahun dated August 17, 2024. In this report, Dr. Getahun diagnosed the applicant with chronic myofascial strain – cervical, lumbosacral, and bilateral shoulder, together with chronic pain syndrome. However, I agree with the respondent that the applicant has not established that she has met the AMA Guides criteria for establishing chronic pain.
27The applicant has not led evidence of overuse or abuse of prescription drugs, and in fact, has not led evidence that she has taken any prescription pain medication after the accident. There is further no evidence of excessive dependence on healthcare providers or family members. The applicant regularly attended at her family doctor’s office pre-accident, and this continued post-accident for a wide range of medical issues.
28With respect to the criteria of secondary deconditioning, Dr. Getahun in his report provides the general conclusion that “she has physical deconditioning affecting her spine and shoulders due to pain”. But no details are provided of such deconditioning. The applicant had been assessed virtually and in the physical exam, Dr. Getahun noted she was moderately restricted in her range of motion in the lumbar spine and mildly in the shoulders. But there is no discussion of secondary deconditioning nor was any evidence referred to in support this criteria.
29Further, Dr. Getahun found that the applicant satisfied the criteria that she withdrew from work, recreation and social contacts, and was unable to restore pre-accident function, based solely on the applicant’s self-reports. However, Dr. Getahun also noted in his report that at the time of the accident, the applicant was not working, but that post-accident, she began to work full-time as a library technician. This does not support a finding that the applicant withdrew from work due to chronic pain. Finally, as noted in the MIG section above, I found that the applicant did not establish that she developed psychological symptoms as a result of the accident.
30Accordingly, I find that the applicant has not established that she has developed chronic pain as a result of the accident, to warrant removal from the MIG.
31As I have found that the applicant has not established that her accident-related impairments warrant treatment beyond the MIG limits, and given that the parties have confirmed that the MIG limits have been exhausted, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
Non-Earner Benefits
32I find that the applicant has not established entitlement to non-earner benefits (“NEBs”).
33Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
34The respondent submits that the applicant is not entitled to an NEB, as she has not submitted a completed Disability Certificate (OCF-3) as required by s. 36(2) of the Schedule. Given that no OCF-3 was provided, the respondent is not liable to pay NEBs pursuant to s. 36(3). In addition, the respondent argues that the applicant has not met the stringent test for entitlement to NEBs.
35The applicant does not dispute that she has not provided a completed OCF-3 to the respondent. However, she points to the fact that at the time she submitted her Application for Accident Benefits (OCF-1) to the respondent, she was unrepresented. The applicant further argues that given that the respondent referred her to Lifemark Clinic after receiving the OCF-1, one of its preferred treatment providers, the respondent effectively “waived” the requirement for an OCF-3. The applicant also submits that the Lifemark treatment records, her psychological assessment report and the chronic pain report, all establish entitlement to NEBs.
36I am not persuaded by the applicant’s argument that the respondent had “waived” the requirement for an OCF-3. The applicant has not provided any caselaw or authority for the argument that permitting an insured to proceed with treatment under the MIG, means that an insurer was waiving the requirement for an OCF-3. Rather, the Schedule holds that an OCF-3 would only be required if an insured was applying for a specified benefit.
37However, even if I accept the applicant’s argument on waiving the need for an OCF-3, I find that the applicant has not established that she meets the test for entitlement to NEBs. The applicant partially relies on the records of Lifemark clinic, which noted when it completed its initial assessment, that one of the rehabilitation goals was “return to activities of normal living”. The applicant argues that this was evidence that she could not complete her activities of normal living. I am not persuaded by the applicant’s argument. The Lifemark assessment noted a number of rehabilitation goals, including increase of range of motion and increase of strength. Simply referencing a rehabilitation goal of “return to activities of normal living” in an assessment, in my view, is not evidence of a complete inability to lead a normal life.
38The applicant further relies on her psychological assessment report dated March 22, 2024, which diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, persistent, major depressive disorder, single episode, moderate, somatic symptom disorder, with predominant pain, persistent and specific phobia situational type. However, as previously noted, I have not found that the applicant has established any psychological impairments as a result of the accident. Further, in the psychological report, it was noted that the applicant reported only a “25%-30% reduction in her ability to perform her day-to-day activities”. This does not meet the test of a complete inability to carry on a normal life.
39Further, with respect to the chronic pain assessment report dated August 17, 2024, I note that Dr. Getahun did not opine on whether the applicant suffered a complete inability to carry on a normal life. It was further noted in the report that at the time of the accident, the applicant was not working, but that post-accident, she began to work full-time as a library technician. In my view, this does not support a finding that the applicant was continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident.
40As such, I find that the applicant has not established entitlement to NEBs for the period in dispute.
Interest
41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.
ORDER
42I find that:
i. The applicant’s accident-related impairments are predominantly minor, and she is therefore subject to treatment within the $3,500.00 limit of the MIG.
ii. The applicant is not entitled to non-earner benefits, the treatment plans in dispute or interest.
iii. The application is dismissed.
Released: February 20, 2026
Ulana Pahuta
Adjudicator