Applicant in two accidents - Both Minor - No NEB or IRBs - Knott and State Farm

November 27, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Knott and State Farm

Decision Date: October 12, 2017
Heard Before: Adjudicator Marcel Mongeon       

MINOR INJURY GUIDELINE: applicant passenger with dog on lap; dog startles driver and causes accident; injuries from the accidents are determined to be minor; applicant not entitled to NEBs on the basis of her injuries

Ms. Lisa Knott was injured car accidents on November 23, 2012 and December 5, 2012, and sought SABs from State Farm. When mediation failed, Ms. Knott applied for arbitration at the FSCO.

Issues:

1. Are Ms. Knott’s injuries from the November 23, 2012 accident predominantly a ‘minor injury’ within the meaning of the Schedule?
2. Is Ms. Knott entitled to receive a non-earner benefit from either December 21, 2012 or May 21, 2013 to November 23, 2014?
3. In the second file (A15-005097):
4. Are Ms. Knott’s injuries from the December 5, 2012 accident predominantly a ‘minor injury’ within the meaning of the Schedule?

 In both files:

1. Is Ms. Knott entitled to payment of any of the following treatment plans on Form OCF-19 all dated April 3, 2014:
   1. A chronic pain assessment for $1,950.00;
   2. A neurological assessment for $1,980.00; and
   3. An attendant care needs (Form 1) assessment for $1,554.28.

Result:

1. Ms. Knott’s injuries are predominantly a ‘minor injury’.
2. Ms. Knott is not entitled to receive a non-earner benefit.
3. Ms. Knott is not entitled to receive payment for any of the listed treatment plans.

At the outset of the Hearing, Ms. Knott’s representative requested an Adjournment on the basis hat the previous day, Ms. Knott had filed appropriate documents to Appeal a decision of a Pre-Hearing Arbitrator in this matter. The appeal was in good order, however, on the basis of section 50.3 of the Dispute Resolution Practice Code determined that the Appeal did not, on its own, require an adjournment of the Hearing.

Facts

Ms. Knott was involved in a car accident on November 23, 2012. She was a seat-belted passenger and had a dog on her lap. The car was driven by her boyfriend, Loren. As the car approached another car stopped in front of it, Ms. Knott’s dog jumped from her lap towards the driver who became confused and pressed the gas instead of brake pedal. The car ran into the car in front of it.

The air bags of Ms. Knott’s car did not deployThe speed of the car at impact was between 10 and 15 km/h. At different times, Ms. Knott has stated that she may have hit her head at the time of collision. It took Ms. Knott a few days to see a doctor. Ms. Knott’s OHIP record shows a November 26, 2012 consultation for a diagnostic code of “Lumbar strain, Lumbago, Coccydnia, Sciatica”. The next entry on the OHIP record is February 14, 2013.

Ms. Knott testified to having depression and anxiety after the CAR ACCIDENT. She also said she had post-traumatic stress disorder (“PTSD”), back pain and sciatica pain. In relation to her anxiety, she specifically noted flashbacks and dreams of dying in a CAR ACCIDENT. Ms. Knott was insistent that her pain was a direct result of the November 23, 2012 CAR ACCIDENT.

Ms. Knott signed an OCF-1 December 1, 2012, and also signed an Election of Income Replacement, Non-Earner and Caregiver Benefit (“OCF-10”) form on November 24, 2012.

A Disability Certificate (“OCF-3”) form for Ms. Knott was completed on November 29, 2012 by a Chiropractor noting an examination of Ms. Knott on November 29. In addition three further evaluations or assessments are suggested. These are: In Home Assessment, Functional Ability Evaluation and Psychological Assessment. The Injury and Sequela Information reported 14 different conditions arising as a direct result of the CAR ACCIDENT including headache, WAD3, sprain and strain of lumbar spine, sprain and strain of right knee and right wrist, contusion of right knee and right wrist and possible concussion.

On December 5, 2012, Ms. Knott was involved in a second CAR ACCIDENT. She was a seat-belted passenger. The car was driven by her boyfriend, Loren. There was a third person in the back seat of the car. Another car collided with Ms. Knott’s car in the front left. The air bags did not deploy nor were there any emergency vehicles which attended the scene. Ms. Knott did not seek any immediate medical care.

An OCF-1[9] and an OCF-10[10] for the second car accident were completed. An OCF-3 for the second CAR ACCIDENT was completed for Ms. Knott on January 22, 2013 the same Chiropractor. It is in almost identical form to the OCF-3 filed for the first CAR ACCIDENT: it again recommends the same three evaluations or assessments and includes 15 (not 14) different conditions the new one being “muscle strain – 2nd right digit”.

Ms. Knott has testified that the impact of the two car accidents could be allocated 99% of her complaints can be attributed to the first accident and 1% being attributed to the second one.

On February 27, 2013 a a Minor Injury Treatment Discharge Report was aompleted by her chiropractor for the first car accident indicated that “Ms. Knott was involved in another motor vehicle Accident on December 5, 2012. Therefore, a treatment plan will be submitted for treatment of injuries she sustained in that accident.” The form also indicated that “Ms. Knott continues to suffer from limitations in prolonged sitting/standing/walking, heavy lifting/carrying/pushing/pulling and repetitive/sustained bending/reacting/stooping. These limitations were aggravated by her recent accident of December 5, 2012.”

State Farm advised it had paid out $802.50 to date for the first accident, and that there was an approved treatment plan for $1,914.80 not yet paid because of errors that the clinic made in billing the amount. These two amounts total $2,717.30 incurred on the first accident. State Farm advised that no treatment has been sought relating to the second accident no payments for it.  On February 14, 2013, Ms. Knott was assessed by a physiatrist selected by State Farm to consider Ms. Knott’s application for treatment under the Minor Injury Guideline (“MIG”). As part of the assessment, Ms. Knott is noted as reporting headaches, neck pain and lower back pain. State Farm’s report concluded with a diagnosis of WAD II, concluding that it was appropriate that the injuries be treated under the MIG and there is no reason that Ms. Knott could not reach maximal recovery within the treatment limitations.

Three OCF-18s proposing treatment with a date of April 3, 2014 were reviewed by the Arbitrator. A chronic pain assessment, a neurological, and an  Attendant Care Needs (“Form 1”) assessment. The Arbitrator reviewed those and the medical and clinical notes for Ms. Knott. Ms. Knott had a baby on February 1, 2017 who accompanied her to the  Hearing with my permission. The Arbitrator noted that during the Hearing Ms. Knott was able to deal with her active 7-month old daughter easily including feeding, lifting and holding her for extended periods of time with no request to take a break from testifying.

Ms. Knott’s representative argued that the NEBst should begin 4 weeks after the initial car accident based on section 12 in particular subsections 12(2) and 12(3)) amended by O.Reg. 251/15.

The Arbitrator rejected  the argument for the following reason. O.Reg. 251/15 also amended section 2 of the Schedule by adding subsection 2 (1.2). This subsection makes it clear that, with respect to section 12, contracts of insurance “entered into or renewed on or after September 1, 2010 and before June 1, 2016” will be read in accordance with the old section 12. In this case, the car accidents were in November and December 2012. Subsection 2 (1.2), therefore makes it clear that the old section 12 – which provides for a 6 month waiting period for the non-earner benefit – is applicable.

Ms. Knott’s representative argued that although the three OCF-18s proposing evaluations or assessments that are in dispute in this Hearing all refer to the date of second car accident, the Arbitrator considered them as relating to the first accident as well. This was opposed by State Farm’s representative, and the Arbitrator agreed that he could consider the treatment plans as applicable to either car accident and did so in this decision. This is not the normal practice. Treatment plans are usually clearly labelled as pertaining to a specific accident, however, nothing changes in the result by permitting this analysis.

Ms. Knott herself acknowledged that the second accident can only be considered to be 1% of any ongoing problems, and as a result of this admission, it is not unreasonable to find that any impairments or injuries that Ms. Knott received in the second accident are minor injuries within the meaning of the Schedule.

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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.