Insured Fails to Provide Documentation of Pre-Exiting Injuries Preventing Maximal Recovery

February 12, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

McGann and Aviva – Entitlement to Benefits: IRBs sought Medical Benefits sought; Attendant Care Benefits sought; MIG threshold not exceeded; evidence does not establish that insured has a pre-existing medical condition documented by a health practitioner before the accident and that will prevent her from achieving maximal recovery from the minor injury

McGann and Aviva

Date of Decision: October 31, 2016
Heard Before: Adjudicator Lynda Tanaka

Issues:

Ms. Ann Marie McGann was hurt in a car accident on June 8, 2013 when she was stopped behind another vehicle in the middle of an intersection when her vehicle was struck from behind.  After the accident, she suffered a headache and pain in the right side of her neck and her right shoulder and lower back.  When she got home, she had pain in the form of a headache and tingling in her legs.  Within two days of the accident), she went to her family doctor, complaining of headache, stiff neck, pain in her shoulder and lower back, and numbness in her hands.  Her family doctor recommended physiotherapy and massage therapy and to take aspirin as needed. Ms. McGann sought accident benefits from Aviva but when the parties were unable to resolve their disputes through mediation Ms. McGann applied for arbitration at the FSCO.

Issues:

1. Is Ms. McGann entitled to receive a medical benefit in the amount of $3,120.00 for physiotherapy services in an OCF-18 by Active Life Wellness, dated June 8, 2013?
2. Is Ms. McGann entitled to payments for the cost of examinations as follows: in the amount of $1,402.94 for an In Home/Form 1 Attendant Care Assessment by Cambridge Medical Assessments, dated July 8, 2013, and in the amount of $2,460.00 for an orthopedic assessment per an OCF-18 by All Health Medical, dated August 12, 2015?
3. Is Aviva liable to pay a special award because it unreasonably withheld or delayed payments to Ms. McGann?
4. Is Ms. McGann entitled to interest for the overdue payment of benefits?

Result:      

1. Ms. McGann is not entitled to receive a medical benefit in the amount of $3,120.00 for physiotherapy services in an OCF-18 by Active Life Wellness, dated June 8, 2013.
2. Ms. McGann is not entitled to payments for the cost of examinations as follows: in the amount of $1,402.94 for an In Home/Form 1 Attendant Care Assessment by Cambridge Medical Assessments, dated July 8, 2013, and in the amount of $2,460.00 an orthopedic assessment per an OCF-18 by All Health Medical, dated August 12, 2015.
3. Aviva is not liable to pay a special award because it unreasonably withheld or delayed payments to Ms. McGann.
4. Ms. McGann is not entitled to interest for the overdue payment of benefits.

DECISION

At the time of the accident Ms. McGann was in a common-law relationship caring for four children, three of whom were under age 10.  She worked at two jobs, whose hours did not overlap.  She worked about 70 to 80 hours per week.  She was off work for three months after the accident and obtained short term disability benefits under the employee health benefits program of one of her employers provided by SunLife.  She testified that she went back to work even though she still had back pain and tingling in her hands.

She took treatment for three months at a rate of three to four times per week and testified that she was getting better with that treatment.  She was not given a prescription for pain medication at any point in her treatment, nor was imaging ordered by the family doctor or the health care practitioners at the clinic where she received treatment.  Dr. S authored a report and provided the opinion that she could not “return to work due to severity of pain and limitations in postural tolerances”.  Ms. McGann’s family doctor provided a letter report for a disability claims department indicating that Ms. McGann was receiving physiotherapy and based on the evidence was expected to return to work on Sept. 9. 2013.

In the OCF-3 prepared by Dr. S, dated September 26, 2013, Ms. McGann was no longer substantially unable to perform the essential tasks of her employment and he said she could return to “light/modified” work duties.

Ms. McGann applied for income replacement benefits, and Aviva had a multidisciplinary assessment conducted of Ms. McGann’s injuries to assess the claim.  The assessors included an orthopaedic surgeon, a Psychologist, an Occupational Therapist and a Kinesiologist.  The assessors’ conclusions were that, from an orthopaedic perspective, Ms. McGann sustained delayed-onset muscular discomfort as a result of the accident which had resolved, and, from a psychological perspective, her psychological distress had likely contributed to some degree of impairment with respect to her ability to function in the areas of family/home responsibilities, social activities, recreational pursuits, occupational duties, sexual behaviour, life support activities and self-care tasks. There was no support in the assessors’ opinions for her being taken out of the Minor Injury Guideline (“MIG”).

An occupational therapy in-home assessment reported that Ms. McGann denied any current accident-related physical, cognitive, or emotional difficulties, that she had resumed her personal care tasks independently as well as her housework, caregiving tasks and her two employment positions.  The assessment reported that she demonstrated near to full active range of motion in her cervical and lumbar spines, and greater than functional range of motion, strength and tolerances with her arms and legs, concluding that Ms. McGann did not present with an accident-related impairment and that she did not require an aide or assistant or any services or devices for her care.

Aviva’s position is that Ms. McGann’s injuries are minor injuries within the meaning of the MIG and that it has paid for the treatment supported by the forms that have been submitted to it within the maximum amount of $3,500.00 allowed under the MIG.  Ms. McGann’s response is that she had a pre-existing injury to her shoulder that takes her out of the MIG.  Also, she requires treatment for psychological issues and the chronic pain that she currently suffers. Ms. McGann testified that her shoulder had been injured in another car accident in 1998 and she had received treatment for the injury.  Her shoulder only bothered her in the rain when it would be achy.

The medical support for her claim to a pre-existing injury is contained in the opinion of the chiropractor at Active Life Wellness Centre who completed the claim form for SunLife. The person who completed the form was not Ms. McGann’s family doctor, and on that basis SunLife denied her claim for short term disability benefits on August 6, 2013.  SunLife was not convinced that it had sufficient medical information to support why she would be totally disabled from performing the duties of her occupation beyond July 26, 2013 (over 6 weeks after the accident). There are no medical records pre-dating the accident that document her “previous shoulder pain/injury”.  Specifically, there is nothing in the family doctor’s records about it.  DY did provide an Attending Physician Statement to SunLife supporting her claim for benefits to SunLife which is included in his clinical notes and records.  On the form, he was asked, “Has patient ever had same or similar condition?”, to which he answered “no”.  There is, however, reference to a “Prior MVA 1998” in a treatment plan signed by Dr. S, dated September 3, 2013, under Part 7 of the form and in response to the question as to whether Ms. McGann had any disease, condition or injury that could affect her response to treatment for the injuries identified in the OCF-18.

Aviva’s position is that Ms. McGann did not submit a treatment plan in the amount of $3,120.00 and it has approved treatment up to the MIG limit, including the partial approval of the OCF-18, dated September 3, 2013.  There is, therefore, no outstanding treatment plan as described in the issues.

The evidence does not establish that Ms. McGann has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent her from achieving maximal recovery from the minor injury.  The record of the pre-existing injury is not found in the family doctor’s notes, as would be expected.  In the assessments done for Aviva, Ms. McGann was inconsistent in her reporting concerning her pre-existing shoulder issues.

The MIG also provides a limited definition of minor injury and Ms. McGann put forward a weak case that she had emotional or psychological issues arising from the accident that fall outside the definition of minor injury.  The evidence here is not sufficient to satisfy the Arbitrator that Ms. McGann has psychological issues arising from the accident that would pull her out of the MIG.

Aviva relies on Section 25(2) of the Schedule that limits attendant care to those cases that fall outside the MIG.  Ms. McGann’s evidence of a need for attendant care was responded to by the report of Mr. Kaine which concluded that she does not need attendant care.  The Arbitrator found that Ms. McGann’s injuries are within the MIG.  Therefore, the claim for $1,402.94 is denied.

With respect to the orthopaedic assessment the Arbitrator was not convinced by the evidence from Ms. McGann that this assessment plan is reasonable and necessary.  Therefore, the claim for $2,460.00 is denied.

As the Arbitrator denied the claims made by Ms. McGann, there is no basis for a special award.

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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.