Insured Fails to Provide Key Evidence to Support Claim

February 13, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

N. E. v Waterloo Regional Municipalities Insurance Pool – IRBs; treatment; MIG; lack of medical evidence; lack of expert testimony; lack of proof of income

N. E. v Waterloo Regional Municipalities Insurance Pool

Date of Decision: December 9, 2016
Heard Before: Ruth Gottfried

OVERVIEW:

N. E. was injured on September 17, 2015, when he. was riding his bicycle and collided with a transit bus making a turn directly in front of him.  He was taken by paramedics to the hospital. No hospital records have been submitted into evidence. He applied for and received IRBs as well as medical and rehabilitation benefits under the Schedule.  Waterloo approved benefits for N. E. until the expenditure reached the maximum of $3,500 allowable for treatment of predominantly minor injuries under the Schedule.

N. E. has been receiving income replacement benefits in the amount of $250.43 weekly since on or about September 23, 2015.  He disputes the amount of these benefits. N. E.’s position is that he continues to suffer a substantial inability to perform the essential duties of his employment and without access to further treatment outside of the Guideline he will be unable to fully recover to his pre-accident condition.

Waterloo denied further treatment plans.  Waterloo also obtained a medical assessment under section 44 of the Schedule dated March 3, 2016 which opined that N. E.’s impairments were predominately minor injuries.

ISSUES:

1. Is N. E. entitled to an amount of income replacement benefits (“IRB”) different from the $250.43 weekly he has been receiving?
2. Has N. E. sustained predominantly minor injuries as defined under the Schedule as a result of the motor vehicle accident of September 17, 2015?
3. If it is determined that N. E. did not suffer predominantly minor injuries, is Waterloo liable to pay:

1. $5,141.30 for chiropractic services in a Treatment and Assessment Plan (“OCF-18”) submitted to Waterloo on September 23, 2015;
2. $225.62 for chiropractic services in an OCF-18 submitted to Waterloo on January 12, 2016;
3. $2,902.30 for physiotherapy services  in an OCF-18 submitted to Waterloo on January 22, 2016;
4. $84.00 for a bus pass submitted by invoice to Waterloo on February 2, 2016?

RESULT:

1. Insufficient evidence was produced to make any determination to vary the amount of IRB;
2. N. E. suffered predominantly minor injuries as defined by the Schedule; and
3. Waterloo is not liable to pay the three treatment plans submitted or the invoice for the bus pass.

On October 6, 2015 N. E. attended at an urgent care facility complaining of back pain.  The attending doctor remarked in his notes that N. E. had a previous injury -  a car accident when he was 12 years old but there had been complete resolution with no sequelae.

N. E. was referred for a Thoracic Spine MRI on March 9, 2016.  N. E. did not submit any evidence regarding any treatment or consultation provided.  The legal representative for N. E. opined on the findings of the MRI, suggesting that “lack of spinous process [as noted in the MRI] could be from a form of Spina Bifada as a child, but the evidence of the origin of the lack of spinous processes is inconclusive.” In this case, instead of the opinion of N. E.’s representative, medical expert opinion or evidence would have been of assistance.  The Arbitrator gave no weight to the legal representative’s opinion.   N. E.’s legal representative also submitted further medical claims of their own, and again there was no evidence to support that assertion.

Spinetec Healthcare Solutions signed and submitted the OCFs in dispute and made brief comments on N. E.’s medical condition on these forms describing N. E.’s injuries as acute sprain and strain of his thoracic spine and lumbar spine with initial sprain and strain to his right elbow and tendons and ligaments in his right arm.  Subsequent OCFs state that his arm injuries have resolved.  N. E. also submitted clinical notes from Spinetec from February 19, 2016 up to and including July 27, 2016. The notes for the visits were brief, sometimes cryptic, and often illegible.  No other clinical notes, records, reports or medical opinions were submitted in support of N. E.’s position.   N. E. submits that his injuries have gone from acute to sub-acute injuries and that he now suffers from chronic pain.  No medical evidence was provided to support this position.

N. E. asserts that the OCF document system “is the only way for claimants to effectively communicate with their insurer” and he had no alternative but to rely on this system because lack of funding restricted his ability to “obtain independent assessments to speak to the Insurer’s Examination Reports”.   Waterloo submitted that they agreed with the statement that the OCF document system was the primary method for communication between the claimant and their insurer, and in their submissions engaged in a review of some of the discrepancies and inconsistencies of the OCFs submitted. 

The OCF system is an effective means of communication but it is designed to be augmented by supporting documentation.  Indeed, there are printed instructions throughout the forms requesting the health care provider to explain and provide evidence supporting their opinion or comments.  The health care provider is instructed to “send any attachments directly to the Insurer.”

While the OCF may be the only vehicle for communication, a claimant has many opportunities to submit to the insurer, and this Tribunal, evidence that can support a claim in addition to the OCF.  These choices are available even for claimants with limited funds, as N. E. submits he is.  The onus is on the claimant to prove their position and to use all available methods to do so.

N. E. received an IRB after the accident.  Waterloo submitted a report calculating the quantum of the IRB available to N. E..  In addition to its findings MDD requested additional information from N. E. to provide a more accurate analysis.  No other income related documents were submitted.

The Arbitrator reviewed the evidence and the law. She noted that “minor injury” is defined in the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” , and that the Schedule limits of $3,500 for benefits referred to) does not apply to an insured “…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…”

The Guideline provides that “compelling evidence should be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner.

Having reviewed all the evidence submitted by both parties the Arbitrator found that N. E. sustained predominantly minor injuries as defined under the Schedule as a result of the motor vehicle accident of September 17, 2015. The Arbitrator noted that since N.E. made no submission to income she cannot make any finding to change it.

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.