Lacroix v. Wawanesa Mutual Insurance, 2021 ONLAT 20-004333 (CanLII) – Case Comment

Learn more about a recent case that illustrates a number of topics I have discussed recently in my blog posts – exceptions to the MIG limits

In Lacroix v. Wawanesa Mutual Insurance[1], the Applicant Mr. L had been injured in a motor vehicle accident on January 17, 2017 and applied for statutory accident benefits from Wawanesa Mutual Insurance (“Wawanesa”). The mechanics of the accident was that he was travelling through an intersection facing a green light when a vehicle in the opposing lane of traffic suddenly turned left and collided with his vehicle.

In particular, Mr. L claimed: $2,148.93 for chiropractic services, $2,144.93 for a psychological assessment by Dr. Pilowsky and $1,995.32 for a psychological assessment by Dr. MacDonald.

According to personal injury law, the amounts of accident benefits available to someone injured in a MVA depends on how their injury is classified. If it is classified as a minor injury, there are more limits to the benefits available; these limits are imposed by the Minor Injury Guidelines (“MIG”). For example, the total amount of medical and rehabilitation benefits is generally capped at $3,500.[2] There is a stipulative definition of “minor injury” in the legislation: it includes a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.[3] Since this type of legislation receives a large and liberal statutory interpretation, any MVA injury that does not fall under this definition is not a minor injury and is not subject to MIG limits. For example, a psychological impairment is not included in the definition of a minor injury and therefore psychological treatment can be sought beyond the MIG.[4] Another exception to the MIG is if the Applicant’s if their health practitioner determines and provides compelling evidence that the Applicant had a preexisting condition that was documented before the accident and that would prevent the Applicant from achieving maximal recovery from the injury if subject to the MIG limits.[5] If an exception to the MIG applies, the onus of proof lies on the Applicant to prove it.[6] Even if an exception is proven, the proposed treatment plan has to be reasonable and necessary.[7]

To support his claim that he sustained a psychological impairment as a result of the MVA, Mr. L submitted notes, reports and opinions of several medical practitioners, including:

• Assessment of Dr. Pilowsky, psychologist, dated February 27, 2018 – She analyzed the Mr. L’s symptoms, verbal reports and psychological test results. His symptoms included anxiety, insomnia, irritability and short-term memory issues. His reports included being fearful while driving, crying spells and pain-related insomnia. She administered the following tests: Beck Depression Inventory-II, Beck Anxiety Inventory-II and Pain Catastrophizing Scale. She diagnosed him with Major Depressive Disorder (Single Episode, Moderate), PTSD with vehicular anxiety (Persistent, Moderate) and Somatic Symptoms Disorder with predominant pain. She opined that he did not fit the criteria of a minor injury. She recommended 12 sessions of psychological treatment with the goals of: helping to improve his coping abilities, reinforcing his efforts through support and validation and introducing more effective ways to cope with his emotional disturbances.
• Assessment of Dr. MacDonald, psychologist, dated May 17, 2018 – He had to perform his own assessment because the College of Psychologists requires psychologists to perform their own assessments. He opined that the injury was not predominantly a minor injury and diagnosed Mr. L as having pain, a depressive episode, stress and adjustment disorders. He recommended psychological services with the goals of pain reduction and return to moderate work activities.

To support his claim that he had a preexisting back condition and that he would not be able to achieve maximal recovery from his MVA injury if subject to the MIG limits, Mr. L submitted the notes, reports and opinions of his family doctor and Dr. Dawson, chiropractor.

• Family physician records – These confirmed based on visits that Mr. L had experienced muscle spasms and flare ups in his back and that he had been prescribed medication, including Naproxen and Baclofen.
• Dawson’s OCF-3 dated August 15, 2017 – He diagnosed Mr. L with mechanical back pain that is now chronic, a concussion, headaches and back sprain and strain. He recommended chiropractic services and massage therapy with the goals of pain reduction and increase in strength.

On June 7, 2018 Wawanesa replied denying Mr. L’s claim for psychological and physical treatment because, in its view, his injuries fit the definition of a minor injury and he thus falls within the MIG. Wawanesa supported its position with the notes, reports and opinions of its two independent examination (IE) assessors, Dr. Challis (who opined on the psychological impairment issue) and Dr. Clifford (who opined on the physical impairment issue):

• IE report of Dr. Challis, psychologist, dated October 10, 2018 – His assessment included similar patient reports and used similar tests as Dr. Pilowsky’s assessment. Nonetheless, he came to a different conclusion. He concluded that there was no psychological impairment and so no need for psychological treatment. He emphasized that Mr. L had expressed a lack of interest in psychological treatment and doubted its efficacy.
• IE report of Dr. Clifford, chiropractor, dated October 15, 2020 – He agreed that Mr. L had preexisting degenerative changes to his spine and recommended treatment to obtain the goals of returning to work and activities of normal living.

Wawanesa reasoned that the psychological assessment of Dr. Pilowsky was not reasonable and necessary because of Mr. L’s expression of lack of interest and the lack of diagnosis in Dr. Challis’ IE report; and that the psychological assessment of Dr. MacDonald was not reasonable and necessary because it was repetitive.

Because Wawanesa had denied his claims, Mr. L applied to the LAT for dispute resolution.

The legal issues to be determined were whether Mr. L’s injuries were predominantly minor in nature and, if not, whether each proposed treatment plan is reasonable and necessary.

The Adjudicator decided that Mr. L had sustained a psychological impairment, that his back injury was preexisting and achieving maximal recovery was not possible within the MIG limits, that Mr. L’s injuries were not minor in nature and therefore that he is not held to the MIG limits. The conclusion that he had sustained a psychological impairment was reached on the basis of Dr. Pilowsky and Dr. MacDonald’s reports. These were accepted because their conclusions were more supported by the evidence than Dr. Challis’ report. Further, the evidence of the chiropractors from both sides of the litigation were consistent that his back issues were preexisting and that further treatment was necessary.

The Adjudicator also decided that all of Mr. L’s proposed treatment plans were reasonable and necessary, especially in light of the diagnoses and treatment goals.

[1] 2021 ONLAT 20-004333 (CanLII).

[2] O. Reg. 34/10 Statutory Accident Benefits Schedule (“SABS”), made under the Insurance Act, s. 18(1).

[3] SABS, s. 3(1).

[4] Cf. Sandeep Gandhi v. Aviva General Insurance, 2019 CanLII 58618 (ON LAT) (CanLII).

[5] SABS, s. 18(2).

[6] Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (CanLII).

[7] SABS, s. 15.