Applicant Fails to Prove Back Problems Related to Car Accident - K.L. and Aviva Insurance LAT 16-002397

August 21, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

K.L. and Aviva Insurance LAT 16-002397

Date of Decision: June 20, 2017
Heard Before: Adjudicator Jeffrey Shapiro

MIG and Treatment: Do injuries fall outside the MIG? Applicant fails to make case that the back injuries are related to the car accident; claims fall within the MIG

Mr. L was injured in a car accident on February 19, 2014. He received benefits from Aviva pursuant to the Schedule. This is Mr. L’s Appeal to the LAT for a ruling that he is entitled to benefits that Aviva has denied.

Both parties agree that Mr. L sustained at least soft tissue injuries to the neck and back, and possibly shoulder, which are defined as minor and “within the MIG”. The dispute centers on whether a compression fracture revealed in a January 14, 2016 x-ray – roughly 2 years after the accident – accounts for Mr. L’s pain and is related to the accident. Aviva does not dispute that if related it would remove Mr. L from the MIG, but does not agree it would entitle him to the requested treatment.

Evidence was presented in writing, consisting of medical reports and records. Mr. L relies primarily on the records of his family doctor, n x-ray report showing a compression fracture, and a medical article. Aviva relies on 6 reports from IEs performed by 3 assessors – a chiropractor, and orthopaedic surgeon and a physician.

In order to be successful in the claim Mr. L must show on the balance of probabilities that the compression fracture is related to the accident.

ISSUES

1. Are Mr. L’s injuries subject to the Minor Injury Guideline?
2. Is Mr. L entitled to receive payment for a medical benefit for chiropractic treatment in the amounts as follows:
   1. $1,191.56 for a plan dated September 12, 2014;
   2. $1,071.41 for a plan dated December 5, 2014;
   3. $956.81 for a plan dated January 30, 2015;
   4. $956.81 for a plan dated May 5, 2015;
   5. $842.21 for a plan dated June 17, 2015?
3. Is Mr. L entitled to interest on the overdue payment of benefits?

Results:

1. Mr. L’s injuries are subject to the Minor Injury Guideline.
2. Mr. L is not entitled to receive payment for a medical benefit for the chiropractic treatment plans.
3. Mr. L is not entitled to interest as no benefits are overdue.

BACKGROUND

Following the February 19, 2014 accident, Mr. L attended hospital where he was discharged the same day with soft tissue injuries.  The exact date is unclear from the submissions however, Mr. L returned to his work as a general labourer engaging in construction work. Mr. L maintains that while he did return to work, he was not able to work at his usual pre-accident pace and he doesn’t do some of the tasks that he used to do.  On April 8, 2014, Mr. L first saw his family doctor, who prescribed anti-inflammatory medication and referred him to extended health care treatments. He saw Chiropractors on three occasions. During this period there was no order for diagnostic tests, referral to OHIP-funded treatment or specialists, nor did his family doctor prescribe further medication. A January 8, 2016 visit is addressed below.

Mr. L initially received treatment under the MIG and remained in the MIG based on Aviva’s IE assessments. Aviva paid $3,087.21 for treatment, mostly, if not all, for chiropractic treatment. Revive then submitted a series of six treatment plans (the later five of which are in dispute) starting on July 15, 2014, continuing to June 16, 2015.

In response to the treatment plans, Aviva requested IEs which took place from August 15, 2014 to June 23, 2015, and one on December 12, 2016.  At the first IE exam in August 2014, a chiropractor, found no objective indicators supporting any ongoing injury or impairment. In his September 25, 2014, paper review report, another physician came to the same conclusion.

Several months later an orthopedic surgeon performed the next IEs and issued reports on January 23 and February 20, 2015. During the examination, Mr. L did report pain with various movements, but the doctor found Mr. L described no exacerbation of symptoms and there were “no objective signs of impairment that would prolong or perpetuate his reported symptoms,” nor signs of radiculopathy, yet “[a]t this stage prognosis for complete resolution of symptoms remains fair.” Radiculopathy was indicated in the requested plans. The orthopaedic surgeon concluded that the December 5, 2014 chiropractic plan he was reviewing was not reasonable and necessary and that there were no objective signs of ongoing impairment. His February 20, 2015 paper review regarding a January 27, 2015 plan came to the same conclusions.

Several months later, on June 23, 2015, a physician that specializes in chronic pain management, performed the next IE - a paper review. Based largely on his May 25, 2015 in person assessment, he found that “there was no identified accident related physical or neurological injury or impairment that would necessitate a continued provision of formal facility-based treatment,” and thus the May 5, 2015 plan is not considered reasonable and necessary. The doctor also found that referral to a chronic pain assessment was not indicated. He notes that he found no ongoing accident related physical impairment during the May 2015 examination. Occupational Therapy in-home assessment that also did not identify any functional restrictions during the assessment.

Records note that Mr. L had essentially no medical follow-up to the accident and there was no documentation to substantiate his claims. The records do not indicate that his family doctor attributed the x-ray findings of his compression fracture to the accident.  “Pt not attending physiotherapy anymore for the last 3 months. He no longer feels pain, but upon lifting a sheet of drywall the pain reoccurs. He has had essentially no medical follow-up for his car accident.”

The Arbitrator reviewed the evidence and the law and determined that Mr. L has failed to prove his back problems are related to the car accident, and thus his injuries remain within the MIG and his claim for further benefits is denied.

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.