Self represented insured failed to present compelling medical evidence to get out of the Minor Injury Guideline

March 16, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: February 19, 2016

Heard Before: Adjudicator Susan Sapin

Issues:                      

Svetlana Chaparina was hurt in a car accident on August 19, 2013.  She applied for and received statutory accident benefits from State Farm Mutual who paid medical and rehabilitation benefits of $3,498.12 under the Minor Injury Guideline but refused to pay for further treatment on the basis that Mrs. Chaparina’s injuries were predominantly minor injuries as defined under the Guideline, and therefore it was not required to pay more than the maximum $3,500 allowable under the Guideline. When mediation failed Mrs. Chaparina applied for arbitration at the FSCO. She represented herself at the hearing.

Issues:

1. Should Mrs. Chaparina’s claims be dismissed because the OCF-18 Treatment and Assessment Plans were not signed either by her or by a regulated health professional, as required by section 38(3) of the Schedule?

2. Should Mrs. Chaparina’s claims be dismissed because her injuries are minor injuries as defined in the Minor Injury Guideline?

Result:

1. Mrs. Chaparina’s claims are dismissed because the Treatment and Assessment Plans were not signed by her or by a regulated health professional, as required by section 38(3) of the Schedule.

2. Mrs. Chaparina’s claims are dismissed because she has not presented any compelling evidence that her injuries are not minor injuries as defined in the Minor Injury Guideline.

Subsection 38(3) of the Schedule requires that a Treatment and Assessment Plan must be signed by the insured person unless the insurer waives the requirement. In addition, the plan must be completed and signed by a regulated health professional. It further states that an insurer is not liable to pay for medical or rehabilitation expenses incurred before the insured person submits a Treatment and Assessment Plan that satisfies the requirements of ss. 38(3).

None of the three plans in dispute was signed by either Mrs. Chaparina or the Chiropractor whose name appears in Part 4 of the plans. Mrs. Chaparina’s evidence was that she did not know anything about the forms, had not seen them, did not go for the proposed treatment, and did not incur the expenses described in the plans. There is no evidence that State Farm advised Ms. Chaparina when the OCF-18’s were submitted, that one of the reasons it refused to pay for them was because they were not signed.

The language of s. 38 is clear and straightforward: an insurer is under no obligation to pay for treatment outlined in a Treatment and Assessment Plan that has not been signed by either the insured person or the health professional who prepared and submitted it on her behalf.  On that basis, the claims should be dismissed.

There is no dispute that Ms. Chaparina suffered soft tissue sprains and strains to her neck, shoulders and back when the van in which she was a passenger was struck on the driver’s side by another vehicle. Mrs. Chaparina continues to suffer from frequent headaches, neck, shoulder and back pain, and sleeplessness over two years after the accident, and has developed jaw pain which makes it difficult to eat and talk. She wants to know why her symptoms have persisted for so long, and she feels she needs further treatment, which she cannot afford. As a hairdresser who stands for lengthy periods and works with her hands mostly at shoulder height, she finds her work aggravates her pain. She states she has had to take on fewer clients and requires more breaks. She is afraid she will not be able to keep working without treatment.

State Farm’s position is that Ms. Chaparina has not provided “compelling” evidence that her injuries are not minor, as required by the Schedule.

Arbitrator Sapin reviewed the evidence and the law. Section 3(1) of the Schedule states that “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. Section 18(1) further states that a person who sustains an impairment that is “predominantly a minor injury” is not entitled to more than $3,500 in medical and rehabilitation benefits, which is paid in accordance with the treatment framework prescribed in the Minor Injury Guideline. However, section 38(2) specifies that the $3,500 limit does not apply to an insured person “if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal medical recovery from the minor injury if the insured person is subject to the $3,500 limit . . .”. The insured has the onus of establishing on a balance of probabilities that the accident injuries are not minor, or predominantly minor, and therefore fall outside the Guideline

In this case, the compelling evidence Mrs. Chaparina must provide must address whether or not her lingering pain and symptoms should be considered to be “clinically associated sequelae” of her accident injuries. If they are, then she is subject to the $3,500 limit on treatment.

The arbitrator reviewed the Treatment Plans but no pre-existing condition relevant to Mrs. Chaparina’s condition was noted.  The clinical notes and records did not provide any relevant information as to whether she should be treated outside the Minor Injury Guideline. 

The evidence of Ms. Chaparina was that she had ongoing pain and she had not likely met pre-injury status”.   The issue was whether the lingering pain and related symptoms came within the definition of clinically associated sequelae or whether they would no longer qualify as a predominantly minor injury.  The Arbitrator found that Mrs. Chaparina has not provided any compelling medical evidence that would take her out of the Guideline.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

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.