Citation: Lima v. Wawanesa Mutual Insurance Company, 2026 ONLAT 24-015320/AABS

Licence Appeal Tribunal File Number: 24-015320/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:

Claudia De Fatima Lima

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Kim Mohammed-Sieudhan, Paralegal

For the Respondent: Gabrielle Nigro, Counsel

HEARD: By way of written submissions

OVERVIEW

1Claudia De Fatima Lima, the applicant, was involved in an automobile accident on February 27, 2023, 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 limit (“MIG”)?

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from March 27, 2023 to date and ongoing?

iii. Is the applicant entitled to $1,995.33 for a psychological assessment, proposed by Alma Rehab Inc. in a treatment plan dated November 5, 2024?

iv. Is the applicant entitled to $2,657.75 for a chronic pain assessment, proposed by Ontario Independent Assessment Centre Inc., in a treatment plan dated January 15, 2025?

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

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

RESULT

3I find that the applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 limit for a minor injury.

4I find that the applicant is not entitled to the treatment plans in dispute, nor interest.

5I find that the applicant is not entitled to a non-earner benefit of $185.00 per week.

6I find that the respondent is not liable to pay an award.

ANALYSIS

Minor Injury Guideline (“MIG”)

7I find that the applicant’s accident-related injuries are predominantly minor, and she is therefore subject to treatment within the $3,500.00 limit of the MIG.

8Section 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) of the Schedule defines a “minor injury” 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.”

9An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical recovery if they are kept within the confines of the MIG. In all cases, the burden of proof lies with the applicant.

10In this matter, the applicant submits her pre-existing chronic pain, anxiety and depression warrant a removal from the MIG. She further submits that she should be removed from the MIG on the basis that her injuries remain chronic in nature.

a. The applicant is not removed from the MIG on the basis of a pre-existing condition

11I find that the applicant is not removed from the MIG on the basis of a pre-existing condition.

12The applicant submits that the subject accident significantly exacerbated her pre-existing chronic pain, anxiety and depression. She argues that given the pre-existing nature and subsequent exacerbation of her physical and psychological impairments due to the accident, she has provided compelling evidence demonstrating her pre-existing medical conditions would impede maximal recovery under the MIG. She submits that prior to the accident, she was diagnosed with anxiety, attributed to the emotional strain resulting from her son’s multiple medical diagnoses and was prescribed Lorazepam for symptom management. In addition, she suffered from continuous lower back, neck and right shoulder pain.

13The applicant relies upon the upon the MRI report dated September 6, 2022; the x-ray and ultrasound reports dated December 9, 2022; the Clinical Notes and Records (“CNRs”) of Dr. Olaolu Adedayo; and the Consultation Report from NeuPath Centre for Pain & Spine, dated February 11, 2023, to support that she suffered from chronic pain in her back, neck and left shoulder prior to the accident.

14The applicant argues that the post-accident medical documentation clearly demonstrates an exacerbation of her pre-existing chronic pain. She submits that the Insurer’s Examination (“IE”) report of Dr. Eric Silver, family physician, dated October 15, 2024, confirms that she suffered an exacerbation of pre-existing neck and low back pain as a result of the accident. The report notes that she was previously limited to a single dose of Oxycocet but following the accident she now requires multiple daily doses of Oxycocet and Oxycodone. The applicant argues that reliance on such strong medications and the escalated use reflects a clear deterioration of her pre-existing conditions and compels the need for rehabilitation beyond the scope of the MIG.

15The respondent submits that the applicant has not provided compelling and credible evidence that her pre-existing conditions did or would prevent her from achieving maximal medical recovery within the MIG. While it acknowledges that she has an extensive pre-accident medical history, it argues that simply having documented pre-existing issues is not sufficient for removal from the MIG. It relies upon the IE report of Dr. Silver where he diagnosed the applicant with accident related sprains and strains. He did not conclude that the applicant’s pre-existing pain would preclude her recovery within the MIG. Rather he opined that it was reasonable to assume it had been temporarily exacerbated, but that the applicant had since achieved maximal medical recovery.

16The respondent further submits that the applicant saw Dr. Adedayo following the accident on March 2, 2023, and the only diagnosis made was “MVA”. She did not return to see Dr. Adedayo again until April 19, 2023. The accident was not mentioned at this, or any subsequent visit. The respondent also submits that the applicant was treated at Alma Rehab between July 29 and November 1, 2024 but she only used $1,046.00 of the $3,500.00 available to her within the MIG.

17I find that the applicant has not proven that she is removed from the MIG because of a pre-existing condition for the following reasons.

18I find that the standard for removal from the MIG on the basis of a pre-existing condition is well defined and strict. A pre-existing condition will not automatically remove an insured from the MIG. The MIG expressly states that exclusions on the basis of pre-existing conditions are expected to be made in extremely limited circumstances and that granting such exclusions on any evidence that falls short of the prescribed “compelling standard” is inconsistent with the intent of the Schedule and the MIG.

19Although I accept the applicant’s evidence that she suffered extensive pre-existing medical conditions, I find that she has not provided compelling medical evidence from a treating practitioner that states that these pre-existing medical conditions would prevent her from achieving maximum medical recovery of her accident-related injuries within the MIG, as required by s. 18(2). I find that simply having a pre-existing condition is insufficient to demonstrate that she should be removed from the MIG.

20I find that the medical evidence provided by the applicant in terms of the specific injuries that she sustained in the subject accident is limited and does not suggest that she would be unable to reach maximal recovery under the MIG. The applicant has not provided compelling evidence that the injuries she suffered in the subject accident are not predominantly minor injuries or that they are not sequelae from her pre-existing medical conditions.

21I find upon review of the CNRs of Dr. Adedayo, that the CNR dated March 2, 2023, notes the applicant complains of pain all over the body especially on the left shoulder and left hip. There is no mention of the applicant’s pre-existing medical problems except that she is on oxycocet and morphine slow release. The assessment was “MVA”. The subsequent CNRs do not mention the subject accident. I find that there is no indication in these records that Dr. Adedayo was of the opinion that the applicant’s pre-existing conditions would affect her post-accident recovery. I also find that other than the CNR dated March 2, 2023, there is no mention of the subject accident within the subsequent CNRs provided.

22With respect to the report of Dr. Hua Goldstein, physiatrist, dated June 20, 2023, I find that the applicant was referred for assessment regarding her low back pain. The report under history notes a 13-year history of back pain as well as the applicant’s involvement in the subject accident, where she notes her pain worsened. Based on the Lumbar Spine MRI, dated September 6, 2022, Dr. Goldstein diagnoses the applicant with chronic mechanical lower back pain. There is no mention in his comments as to how the subject accident effected her current back condition and he does not mention the subject accident or comment on any effect the accident had on her condition.

23I find upon review of the Disability Certificate, prepared by Dr. Akash Duff, chiropractor, of Alma Rehab Inc., dated August 15, 2024, that under Part 8 – Prior and Concurrent Conditions, he indicates that the applicant did not have any disease, condition or injury that affected her ability to perform the activities listed in Part 6. I therefore give no weight to this Disability Certificate, when it is clear that the applicant has a significant pre-existing medical history that a treating practitioner should be aware of before filling out this form.

24I do not find that the IE report of Dr. Silver supports the applicant’s position that she should be removed from the MIG due to her pre-existing impairments. While Dr. Silver notes that the applicant’s pre-existing pain complaints temporarily exacerbated the applicant’s sprain and strain injuries from the accident, he concludes that the musculoskeletal injuries sustained in the subject accident are classified as minor injuries and there is no compelling objective evidence of an accident-related physical impairment.

25Although I acknowledge that the applicant had significant pre-existing impairments, what I find lacking is compelling medical evidence from a treating practitioner supporting that these impairments would prevent recovery if she is treated within the MIG. I find that she has not met the test for MIG removal as per s. 18(2) of the Schedule.

26For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that she suffers from a pre-existing medical condition that would prevent maximal medical recovery if she is subjected to the MIG and therefore she is not removed from the MIG on this basis.

b. The applicant is not removed from the MIG on the basis of a chronic pain condition

27I do not find that the applicant suffers from a chronic pain condition as a result of the accident that would remove her from the MIG.

28Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, she must demonstrate that her pain causes a functional impairment which adversely affects her well-being.

29The applicant submits that she should be removed from the MIG on the basis that her injuries remain chronic in nature. She submits that her condition has required a multidisciplinary approach, including physiotherapy, massage therapy, chiropractic care, acupuncture, and nerve block injections. She relies upon the report of Dr. Goldstein, dated June 20, 2023, where she was diagnosed with “chronic mechanical lower back pain”. She submits that she has consistently reported chronic neck and back pain across her 7-8 medical visits with Dr. Goldstein.

30The applicant submits the subject accident aggravated her pre-existing chronic lower back and neck pain. As a result of her worsening condition post-accident, she was referred for an MRI on June 11, 2024. She further submits that prior to the accident she was limited to a single daily dose of Oxycocet but following the accident she now requires multiple doses of both Oxycocet and oxycodone which clearly reflects a deterioration of her pre-existing conditions post-accident.

31In terms of her functional limitations, the applicant submits that the escalation in opioid use, along with her sleep disruption, vehicular anxiety, and her constant anxiety about her wellbeing, demonstrate that her pain and anxiety are causing her to suffer distress and impact her functional impairment.

32The respondent submits that the evidence available supports that the applicant’s pre-existing symptoms did not change as a result of the accident and that her injuries arising from the subject accident fall within the definition of a minor injury and are subject to the MIG.

33The respondent relies upon the IE Occupational Therapy Assessment report of Jeff Perrier, occupational therapist, dated November 8, 2024, where he concluded that the applicant presented with the ability to perform all personal care, community mobility, and, at minimum to participate in lighter housekeeping/home maintenance tasks, lighter caregiving activities and sedentary leisure activities. It relies upon the IE report of Dr. Silver, dated November 8, 2024, where he concluded that the applicant sustained sprain and strain injuries as a result of the accident. It further relies upon the IE Psychological Assessment report of Dr. Tatitana Dumitrascu, dated November 8, 2024, where she concluded that the applicant does not meet the DSM-5 criteria for a psychological disorder as a result of the accident.

34I find that the applicant has not met her evidentiary onus to prove, on a balance of probabilities, that she suffers from chronic pain as a result of the subject accident.

35I find upon review of the pre-accident CNR of Dr. Adedayo, dated February 23, 2023, that the applicant was diagnosed with chronic neck, back and right shoulder pain prior to the accident. The CNR notes that she is seeing a pain team for local injections. The CNR immediately following the accident dated March 2, 2023, notes that the applicant complains of pain all over the body especially on the left shoulder and left hip. The subsequent CNRs do not mention the subject accident and her complaints are consistent with those made prior to the subject accident. I find that there is no mention throughout the CNRs that the applicant’s pre-existing pain was affected or exacerbated as a result of the subject accident.

36I find upon review of the report from NeuPath Centre for Pain and Spine, dated February 11, 2023, prior to the subject accident, the applicant is diagnosed with chronic right sided neck pain likely mechanical, Degenerative Disc Disease (“DDD”) and myofascial pain disease. She was also diagnosed with chronic low back pain likely mechanical, DDD, and myofascial disease. A multimodal treatment approach was recommended, and the applicant reports that she attended this clinic for injection therapy for a total of 10 sessions. She claims that she discontinued attending because she did not feel the treatment was working. I find that the applicant has not provided a copy of NeuPath’s records other than the initial consultation report. I further find that the applicant has not pointed the Tribunal to any evidence that the treatment regimes changed following the subject accident as a result of any additional impairment from the subject accident.

37Upon review of Dr. Goldstein’s report, dated June 20, 2023, while Dr. Goldstein notes the applicant’s involvement in the subject accident, he does not comment about the effects of this accident on his diagnosis of the applicant. I find that Dr. Goldstein’s diagnosis that the applicant suffers chronic mechanical lower back pain is consistent with the pre-accident diagnoses of both Dr. Adedayo and Neupath Centre for Pain and Spine.

38I find that it is clear from the medical evidence that prior to the accident, the applicant suffered from chronic neck, back and right shoulder pain. This is supported in all of the evidence submitted. However, I find that the applicant has not proven that the injuries sustained in the subject accident effected her pre-accident condition or that she suffers chronic pain as a result of the injuries sustained in the subject accident.

39In terms of her functional limitations, the applicant has not provided submissions as to the specific functional limitations she experiences as a result of the injuries sustained in the subject accident. While she submits that her opioid use has increased and she has sleep disruption, vehicular anxiety and constant anxiety, she has not directed to any further evidence to support that she suffered functional limitations as a result of the subject accident. I therefore do not find that the applicant has proven on a balance of probabilities that her ongoing pain as a result of the injuries sustained in the subject accident were of a significant level or was accompanied by some functional impairment or disability.

40For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that she suffers from a chronic pain condition as a result of the subject accident and therefore she is not removed from the MIG on this basis.

Entitlement to the Treatment Plans in Dispute

41As I have determined that the applicant’s impairments fall within the MIG, she is not entitled to the treatment plans in dispute because seek treatment outside of the MIG. It is therefore unnecessary for me to address whether the treatment plans in dispute are reasonable and necessary.

Entitlement to a Non-Earner Benefit

42I find that the applicant has failed to meet her burden to demonstrate that she suffers a complete inability to carry on a normal life as a result of the accident.

43Pursuant to s. 12(1) of the Schedule, an insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an 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.

44Subsection 3(7)(a) of the Schedule provides that a person suffers a complete inability to carry on a normal life as a result of an accident, if as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

45The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Insurance Company, 2009 ONCA 391 (“Heath”) which generally focuses on a comparison of the applicant’s pre- and post-accident activities.

46For the applicant to prove that she sustained injuries that continuously prevent her from engaging in substantially all of her pre-accident activities, she must present a thorough analysis and comparison of activities that she could do before the accident and after the accident. The applicant must first identify the activities in which she used to engage, along with their frequency and importance.

47The applicant claims entitlement to a non-earner benefit of $185.00 per week from March 27, 2023 to date and ongoing. The applicant relies on the Disability Certificate, dated August 15, 2024 which indicates that she suffers a complete inability to carry on a normal life. The applicant submits that she is unable to carry out a normal life due to her extreme chronic pain, which restricts her daily functioning. She submits that post-accident, she is unable to or needs assistance with most of her activities of daily living and her ability to stand has been significantly reduced to 15 minutes.

48The applicant submits that her dominant pre-accident activity is taking care of her children, specifically her older son who is severely autistic and suffers from down syndrome. She argues that the CNRs of Dr. Adedayo confirm that following the accident, she consistently reported her inability to take care of her autistic son due to the injuries sustained in the subject accident.

49The applicant submits that the IE reports are unreliable and lacking as they are inconsistent with the objective medical records provided and the assessors did not review the applicant’s full medical brief. With respect to Dr. Silver’s IE report, the applicant argues that he fails to comment on whether the applicant can complete the specific tasks involving her son post-accident. With respect to Mr. Perrier’s report, he confirms that the applicant is unable to complete hair styling and lower leg washing, requires assistance with grocery shopping, is limited in meal preparation and orders take out three times per week. She submits that the assessors have not reviewed the applicant’s full medical brief.

50The respondent submits that the applicant has not adduced evidence of an inability to perform substantially all of her pre-accident activities. To the contrary, she has reported being able to perform many of her pre-accident activities, including light housekeeping, cleaning and some leisure activities. The respondent argues that the applicant has not produced any expert reports which support that she meets the stringent NEB test.

51The respondent submits that the applicant’s primary argument for entitlement to a NEB is based on isolated mentions of difficulty lifting her son post-accident. However, these difficulties were present long before the accident. The respondent relies upon the CNR of Dr. Geza Molnar, dated November 15, 2016, which notes that her chronic pain is worse when carrying her son. During a subsequent visit on September 20, 2018, she advised Dr. Molnar that her son was getting large and hard to deal with.

52The respondent relies upon the November 8, 2024 IE reports of Dr. Silver, Mr. Perrier and Dr. Dumitrascu, who all concluded that the applicant did not suffer a complete inability to carry on a normal life. The respondent submits that in their reports dated February 26, 2025, all three assessors reviewed substantial further medical documentation and maintained their original opinions.

53I find on a balance of probabilities, that the applicant has not met her onus of proving that she meets the test for NEBs for the following reasons.

54I find that the applicant has not made submissions on the particulars of her pre-accident activities as required by Heath. While she states that she is unable to or needs assistance with most of her activities of daily living, without details regarding the activities she valued, or evidence of the frequency and time commitments of her pre-accident activities, I cannot compare her pre- and post-accident ability to engage in activities in which she ordinarily engaged in or valued.

55I find that the applicant in her submissions states that even though she suffered from pre-existing medical conditions, she was able to complete her pre-accident activities with no difficulties, except for standing which was limited to 45 minutes. I find this submission is contradicted by the report of NeuPath Centre for Pain and Spine, dated February 11, 2023, which notes that she is 50% limited in shopping, cooking, cleaning, laundry and driving. The report also notes that the applicant’s back pain is worse with housework and taking care of her son. Clearly, at the time of this assessment, the applicant reported difficulties with these activities of daily living which contradicts her submission that she had no difficulties pre-accident.

56Upon review of the pre-accident CNRs of Dr. Adedayo, at her first appointment on August 16, 2022, she reported a history of chronic low back pain and an anxiety disorder. She notes that her “son has down syndrome special needs and hit her at times, pulled back when lifting son”. On January 17, 2023, the CNR notes that she has ongoing neck pain for over three years, worsened in the past three months. Dr. Adedayo advises her to keep her spinal appointment for her low back pain and he also referred her to a pain clinic for her right sided neck pain and her left sided lower back pain.

57I find upon review of the post-accident CNRs of Dr. Adedayo, that the applicant continued to report her chronic neck and back pain. There is no real discussion in these records as to the applicant’s functional limitations. There is however mention on March 12, 2024, that her “chronic back pain; gets worsened flares when tries to pick up son” and on September 19, 2024, she notes “a flare up/breakthru pain when lifts son”. This CNR notes she is struggling with her autistic son. I find that the difficulties with lifting her son are consistent with the pre-accident records of Dr. Mohar where the applicant struggled with caring for her son. Other than pointing the Tribunal to the CNRs of Dr. Adedayo that mention her problems lifting her son, the applicant has not directed the Tribunal to any other evidence that she suffered a complete inability to care for her son following the accident.

58I further find that the applicant has not pointed me to any CNRs from NeuPath or Alma Rehab, where she attended for treatment, to support the limitations she claimed to suffer in her activities of daily living.

59Upon review of the report from Dr. Goldstein, dated June 20, 2023, the report does not discuss the applicant’s functional limitations or the activities she is unable to do. The report does states that the applicant reported her pain worsens with bending activities and standing in particular. Again, while Dr. Goldstein notes the subject accident under history, he does not comment on any injuries or exacerbation from the subject accident.

60I find upon review of the Disability Certificate, dated August 15, 2024, that while it indicates that the applicant suffers a complete inability to carry on a normal life, I find that the failure to note the applicant’s significant pre-accident history and conditions, is a significant omission that undermines the validity of the Disability Certificate. I further find that while the Disability Certificate indicates that she has “difficulty w/ ADLs”, it does not particularize the activities the applicant was unable to do.

61I give weight to the IE reports which all concluded that the applicant does not suffer a complete inability to carry on a normal life as a result of the subject accident. I find that Mr. Perrier completed an assessment of the applicant’s pre- and post-accident and found that the applicant continues to perform most personal care tasks (except for hair styling and lower leg washing), grocery shopping (with assistance with carrying), meal preparation (except for getting take out three times per week), and some driving. He concluded that she presented with the abilities to perform all personal care and community mobility and at minimum to participate in lighter housekeeping maintenance tasks, lighter childcare activities, and sedentary leisure activities, as well as driving her children to school. Mr. Perrier’s findings were further supported by the IE report of Dr. Silver where the applicant reported that she is fully independent with all personal care tasks but uses pacing and modified techniques with tasks that aggravate her right shoulder and left lower back pain. She is able to perform light cooking tasks, however her mother has taken over much of the cooking due to her pain symptoms. She is able to use a Dyson vacuum but otherwise avoids most housekeeping tasks due to her right shoulder and lower back pain. She continues to provide care to her disabled son which she finds quite difficult due to her pain. She has returned to driving short. I find that Dr. Dumitrascu in her Psychological IE report concludes that applicant reportedly performs light housekeeping tasks, provides constant support with dressing, eating, toileting for her son, and has no major difficulties with her self-care. I find that the opinions of these IE assessors are consistent with the report of NeuPath where the applicant reported that pre-accident she was limited by 50% in shopping, cooking, cleaning, laundry and driving.

62For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that she is entitled to a NEB.

Interest

63Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that there are no benefits overdue, no interest is payable.

Award

64The 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.

65The applicant submits that the respondent unreasonably denied necessary treatment plans and is therefore liable for an award.

66As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.

ORDER

67For the reasons outlined above, I find:

i. The applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 limit for a minor injury;

ii. The applicant is not entitled to the treatment plans in dispute, nor interest;

iii. The applicant is not entitled to a non-earner benefit of $185.00 per week;

iv. The respondent is not liable to pay an award; and

v. The Application is dismissed.