Chronic Pain Moves Applicant Out of MIG - Applicant v The Co-operators, LAT 16-004674

December 23, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v The Co-operators, LAT 16-004674 2017 CanLII 77361 (ON LAT)

Decision Date: November 7, 2017
Heard Before: Adjudicator Nicole Treksler

MIG and ENTITLEMENT TO BENEFITS: applicant provided evidence that injuries are chronic; applicant provides evidence of chronic pain; applicant fails to attend some IEs; some treatment plans approved outside the MIG

The applicant was hurt in a car accident on September 11, 2014, and made claims for medical benefits, cost of examinations and assessments and the cost of a professional accounting report. When The Co-Operators denied the claims and mediation failed the applicant applied to the LAT for arbitration.

The applicant has injuries to his neck, shoulders, and upper and lower back due to the accident and takes the position that his injuries are predominantly not minor and are not subject to the $3,500 limit within the MIG, as his injuries have become chronic and he suffers from chronic pain syndrome.  The applicant is also experiencing headaches, severe psychological symptoms, and sleep disorders due to the accident. Regarding the cost of the professional report, the applicant’s position is the cost of the report was reasonable and necessary at the time. The applicant must establish on a balance of probabilities that his injuries are not minor and that the medical benefits and the cost of assessments, examinations, and the accounting report are reasonable and necessary.

Issues

1. Are the applicant’s injuries predominantly minor and limited to $3,500 in medical benefits?
2. Is the applicant entitled to payment of medical benefits for the following treatment plans for physiotherapy services?
   1. $1,530.00 in a treatment plan dated December 15, 2014
   2. $2,765.00 in a treatment plan dated April 9, 2015
   3. $2,765.00 in a treatment plan dated September 10, 2015
3. Is the applicant entitled to a medical benefit for physiotherapy services recommended in a treatment plan dated February 3, 2016 in the amount of $3,702.94?
4. Is the applicant entitled to the cost of a chiropractic assessment recommended in a treatment plan dated December 4, 2015 in the amount of $200.00? 
5. Is the applicant entitled to the following assessment expenses recommended:
   1. $1,318.00 for cost of an In-home assessment in a treatment plan dated August 17, 2015
   2. $2,000.15 for a psychological assessment in a treatment plan dated August 31, 2015
   3. $1,345.95 for a functional abilities evaluation in a treatment plan dated August 26, 2015
   4. $1,187.26 for a work site assessment in a treatment plan dated October 26, 2015
   5. $2,000.00 for an orthopaedic assessment in a treatment plan dated November 20, 2015
   6. $2,000.00 for a chronic pain assessment in a treatment plan dated December 15, 2015
   7. $1,988.80 for an impairment assessment in a treatment plan dated January 19, 2016
   8. $2,000.00 for a physiatry assessment in at treatment plan dated February 5, 2016
6. Is the applicant entitled to the cost of an accident benefits report dated December 15, 2014 in the amount of $2,147.03?
7. Is the applicant entitled to interest for the overdue payment of benefits.

Result:

1. The applicant’s injuries are not minor due to chronic pain syndrome, and a psychological impairment, and so cannot be treated under the MIG.
2. The applicant is not entitled to the following treatment plans because he failed to attend the insurer’s examinations:
   1. $2,765.00 for physiotherapy services in a treatment plan dated September 10, 2015
   2. $3,702.94 for physiotherapy services in a treatment plan dated February 3, 2016
   3. $1,318.00 for an in-home assessment in a treatment plan dated August 17, 2015
   4. $2,000.00 for a chronic pain assessment in a treatment plan dated December 15, 2015
3. The applicant is entitled to the following:
   1. $2000.00 for an orthopedic assessment in a treatment plan dated November 20, 2015.
   2. $1,988.80 for an impairment assessment in a treatment plan dated January 19, 2016.
   3. $2,000.00 for a physiatry assessment in a treatment plan dated February 5, 2016.
   4. $1,580.00 for physiotherapy services in a treatment plan dated April 9, 2015 in the amount of $2,765.00, which was partially approved for $1,185.00.
   5. $2000.15 for a psychological assessment in a treatment plan dated August 31, 2015.
   6. $1,345.95 for a functional abilities evaluation in a treatmen tplan dated August 26, 2015.
   7. $1,187.26 for a worksite assessment in a treatment plan dated October 26, 2015
4. The applicant is not entitled to the following:
   1. $2,147.03 for an accounting report in a treatment plan dated December 15, 2014.    
   2. $200.00 for the preparation of a chiropractic assessment in a treatment plan dated December 4, 2015.
5. The Co-Operators had already approved the treatment plan dated December 15, 2014 in the amount of $1,539.00 for physiotherapy services.
6. The applicant is entitled to interest on the treatment plans that were found reasonable and necessary if they have been incurred. 

The Schedule defines a minor and limits treatment to a maximum of $3,500.00. An insured who does not have minor injuries or whose injuries are minor but has shown compelling medical evidence that there is a pre-existing condition that would prevent maximum medical recovery within the $3,500.00 may access up to $50,000.00 in medical and rehabilitation benefits.

The Co-Operators relied on the IE reports dated June 23, 2016 of a physiatrist, and a psychologist, which found that the applicant’s physical injuries are minor and there are no significant psychological impairments.

The applicant’s Disability Certificate dated September 19, 2014 completed by a chiropractor, the applicant has the following injuries: WAD 2; sprain and strain of thoracic and lumbar spine; dislocation, sprain and strain of joints and ligament of shoulder girdle; sleep disorder; and anxiety disorder. The applicant indicates that his injuries are not minor due to the following: i. Chronic pain syndrome; ii. Headaches and sleep disorder; and iii. Psychological injuries and impairments.

The Adjudicator reviewed that medical evidence provided by the applicant and found that the applicant’s condition has become chronic and the applicant suffers from chronic pain syndrome, and because of this condition, the MIG does not apply. In the absence of any persuasive evidence from The Co-Operators, I find that the applicant has met the onus that he suffers from chronic pain syndrome.

The Adjudicator reviewed the medical evidence and determined the applicant suffers from a psychological impairment as a result of the accident which cannot be treated under the MIG.

Under section 44 of the Schedule, an insurer may require an insured person to be examined, but not more often than is reasonably necessary. Under section 55 of the Schedule, an insured person is not entitled to proceed with his claims until such time that he attends the IEs. The applicant failed to provide any evidence to indicate that the IEs were being requested “more often than is reasonably necessary” or any other relevant arguments that would explain his non-attendance. Consequently, he is not entitled to dispute the insurer’s denials of these treatment plans. These claims are dismissed.

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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.