Insured did not present sufficient evidence to get out of the minor injury guideline.

February 27, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: December 14, 2015

Heard Before: Adjudicator Lynda Tanaka

REASONS FOR DECISION

Issues:

Ms. Qin Nikki Chen was in a car accident on April 2, 2012 when the car in she was a passenger was struck by another automobile.  She was in the back seat of the car wearing a seatbelt. They were travelling at or over 80 km/h when another automobile hit their automobile from the right side, pushing their automobile sideways to the left and off balance so it “tilted on wheels before coming to rest”. She suffered injuries and applied for and received benefits under the Schedule. When she and TD could not agree on benefits and arbitration failed Ms. Chen applied FSCO.

The issues in this Hearing are:

1. Is Ms. Chen entitled to medical benefits claimed in a treatment plan dated April 12, 2012 outstanding totaling $1,518.98, and a treatment plan dated June 18, outstanding totalling $690.84?

2. Is Ms. Chen entitled to costs of examination benefits for a treatment plan, dated May 29, 2012 totalling $1,979.36, and a Disability Certificate dated July 27, 2013 totaling $200.00?

3. Is Ms. Chen entitled to interest on overdue payment in accordance with the Schedule?It was previously agreed on consent by both parties that interest on any benefit ruling at Arbitration would be calculated only up until March 1, 2015.

Result:

1. Ms. Chen is not entitled to the medical benefits claimed.

2. Ms. Chen is not entitled to costs of examination benefits.

3. Ms. Chen is not entitled to interest as there are no benefit rulings in her favour.

EVIDENCE AND ANALYSIS:

Ms. Chen disputes the partial denial of two treatment plans by TD.  TD denied the treatment plans and assessment on the basis that she had already received $3,500.00 in treatment and her injuries were predominantly minor in nature as described by the Minor Injury Guideline (“the MIG”).  TD also denied payment of a Disability Certificate issued some fifteen months after the accident on the same grounds.

Ms. Chen was 22 years old at the time of the accident. She lives with her extended family and works in the fast food industry.  During her evidence, she appeared to be struggling to remain attentive, and was prompted from time to time by the interpreter to respond to a question as the day wore on.  No request for an adjournment or other accommodation for her was made.

Ms. Chen testified that immediately after the accident, she felt a cramp in her stomach and nausea.  There is some dispute as to whether or not she complained at the time of the accident about pain in her neck and back, or if those pain sites arose in the next two days.  She did not need to go to the hospital, either on her own later or by ambulance after the accident.  She testified at the Hearing that she was not dying or bleeding so she did not need an ambulance.  She testified that her sister convinced her to go for treatment about two weeks after the accident, and she also retained a lawyer.  She received chiropractic and physiotherapy treatment two or three times a week and it was helpful.  After the treatment stopped, she had pain here and there and she described in her evidence that her bones would dislocate.  She still has limitations in that she still feels pain and she cannot carry heavy loads.

After the accident, she was unable to hold or lift and carry her sister’s children and she said that this caused a big problem.  She testified to ongoing pain and anxiety, her fear of driving, and her irritability.  She tried to return to her university program following the accident but withdrew because she could not do the work – she had difficulty concentrating, little energy, sensitivity to loud noises, and pain sitting in class.  She says that, since the accident, her memory is poor and the school environment is too noisy.  She told her family doctor 4 months after the accident that she had pain in her neck and shoulder and that she had headaches.  She testified that she went to a psychologist because she was not sleeping well and she was bothered by loud sounds; in her testimony she referred to examples like the sound of metal coming together as bothersome.  She is not sure what the benefit would be of the psychological treatment because the major issue is sleeping.  She has gone to her family doctor over the sleeping issues and he has tried to address her concerns, albeit not to her satisfaction.  There is some suggestion that she may return to her university program eventually although she would prefer to be a hairstylist.

A chiropractor at Mon Sheong, completed a treatment plan, dated April 12, 2012, which proposed 16 treatment sessions.  It was partially approved for $2,200.00 and Ms. Chen underwent the treatment.  The outstanding amount of $1,518.98 is what is in dispute in this Arbitration. The chiropractor noted the injury and sequelae directly resulting from the accident as strains and sprains of various muscles and tendons, tension-type headache, vertigo of central origin, malaise and fatigue, inappropriate diet and eating habits, other effects of heat and light, insomnias, and unspecified anxiety disorder.  The treatment plan proposed the goal of pain reduction, increase in strength, increased range of motion and promotion of tissue repair/remodelling.

The Chiropractor also noted that based on evidence of more severe accident mechanism and subsequent injury, as well as accompanying psychosocial issues and decreased ADL capacity, Ms. Chen’s condition was not presently considered to be minor. He noted the barriers to her recovery as the severity of the collision (high force side impact), insufficient capacity for physically demanding ADLs and psychological issues.

In its response TD waived the completion of a Treatment Confirmation Form and agreed to make payments within the MIG on the assumption that the impairment was a minor injury.  TD requested submission of an application for accident benefits which Ms. Chen did.

A subsequent treatment plan was submitted for Ms. Chen by a physiotherapist at Mon Sheong which was partially approved to a total of $1,300.00 and Ms. Chen underwent this treatment.  In denying the balance of the treatment plan TD explained the injuries described appeared predominately minor in nature and that on the completion of the first treatment plan  there was only $1,300.00 left in the cap for medical and rehabilitation benefits payable under s. 18(1) of the Schedule.  Ms. Chen failed to attend an Insurer Examination which had been scheduled for May 16, 2012 to determine if the injuries were minor.  TD indicated it would have the Insurer Examination rescheduled and would reconsider its position on receipt of a report under that examination or submission of objective medical documentation indicating the injuries were not minor.

Another chiropractor with Mon Sheong testified concerning the Disability Certificate that she signed 15 months after the accident.  It noted the injury and sequelae directly resulting from the accident as strains and sprains but provided more detail as to which shoulder and which wrist were injured, and gave clearer information on the diet issue.  She added “unspecified disorder of psychological development” to the list as she was obligated to include what Ms. Chen reported to her as the injuries and sequelae that were the direct result of the accident.  She also noted that Ms. Chen had a substantial inability to perform her housekeeping and home maintenance services even though her examination occurred over a year after the accident no other mote had been made of such a problem.

 A treatment and assessment plan for a psychological assessment was submitted for “Mixed anxiety and depressive disorder”.  TD denied approval of this plan on the basis that the impairment only entitled Ms. Chen to receive services under the MIG, and it requested that Ms. Chen attend assessments to determine if the impairment came within the MIG.

The Insurer Examinations originally scheduled for May 2012 were rescheduled and Ms. Chen was assessed by a psychologist, and then subsequently she had a medical examination which included physical assessments determine if Ms. Chen sustained a “minor injury” under the Schedule.  Both doctors concluded that the physical injuries suffered by Ms. Chen fall within the MIG.  Both reported that Ms. Chen exaggerated her injuries that none of the previous psychological issues reported in the OCF-18 submitted by the chiropractors was supported.

The Arbitrator noted that the onus is on Ms. Chen to prove that her injuries and impairments were the result of the automobile accident, and that her recommended treatment plans are reasonable and necessary, and that her injuries are such that she is entitled to benefits outside the MIG.  There is no objective evidence that the injuries suffered were other than minor injuries as defined in the Schedule, and there is no evidence of a pre-existing condition that will prevent her from achieving maximal recovery from the injury within the MIG cap.  To get out of the MIG, on the basis of psych-social impairments, there must be objective evidence in support of that.  There is none.

It is not up to TD to rebut an assumption that the treatment plans are reasonable and necessary – it is up to Ms. Chen to prove that they are.  She provided insufficient evidence for the Arbitrator to draw the conclusion.  The Arbitrator therefore found that the MIG cap is a complete answer to the claims that are brought in this Arbitration and that Ms. Chen is not entitled to the medical benefits or costs of examination claimed.

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.