Insured Lacks Credibility - Injuries Fall Within MIG

February 10, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Maryam and State Farm - Entitlement to benefits; entitlement to special award; were benefits unreasonably withheld or delayed?  MIG test met and injuries fall within MIG; insured lacks credibility

Maryam and State Farm

Decision Date: 2016-09-26
Heard Before: Adjudicator Harvey Savage

REASONS FOR DECISION

Issues:

Mrs. Reema Maryam was injured in a car accident on December 26, 2012, when her car was rear ended while she was on a coffee break from work. felt pain in her knees and chest and experienced chest pain; the chest pain as a result of her hitting the steering wheel and her knee pain as a result of her right knee hitting the dashboard. She also said that both of her shoulders hit the back of her seat as a result of the motion of the impact. An ambulance did not attend the scene. She stayed home from work for a few days taking Advil and Tylenol for the pain. She did not see her family doctor.

As a result of the collision she accident benefits from State Farm but when the parties were unable to resolve their disputes through mediation Mrs. Maryam applied for arbitration at the FSCO.

The issues in this Hearing are:

1. Is Mrs. Maryam entitled to receive medical benefits claimed for chiropractic and massage therapy?
2. Is Mrs. Maryam entitled to payments for the costs of examinations provided at Cambridge Medical Assessments?
3. Is State Farm liable to pay a special award because it unreasonably withheld or delayed payments to Mrs. Maryam?
4. Is Mrs. Maryam entitled to interest for the overdue payment of benefits?
5. Is State Farm liable to pay Mrs. Maryam’s expenses in respect of the Arbitration?
6. Is Mrs. Maryam liable to pay State Farm’s expenses in respect of the Arbitration?

Result:

1. Mrs. Maryam is not entitled to the claimed medical benefits.
2. Mrs. Maryam is not entitled to the claimed costs of examinations.
3. Mrs. Maryam is not entitled to a special award.
4. Mrs. Maryam is not entitled to interest.
5. State Farm is entitled to its expenses

CHRONOLOGY

Mrs. Maryam indicated that she is someone who does not like to complain as explanation for her rapid return to work and her continuing to work to the present. She made several visits to see her family physician in the weeks and months following the accident. However, she did not mention the accident until August 2013, following her having retained counsel. She felt a need for chiropractic treatment since the Advil and Tylenol were not sufficient, and she therefore decided to seek legal counsel.

She obtained massage and chiropractic treatment from Mackenzie Medical Rehabilitation Center from June until December 2013. She was referred by her counsel.  She acknowledged that to date she has received $3,899.99 from State Farm in medical and rehabilitation benefits.

Mrs. Maryam submits that State Farm both treated her unfairly and ignored her evidence in denying various treatments. She submits that shortly following the accident she spoke to a representative of State Farm and advised that she had been injured in an accident. She noted to the representative that she had chest pain and soreness in her knees. However, she alleges that she did not receive any correspondence from State Farm following that conversation. She submits that State Farm erred in that it misconstrued her delay in complaining about her injuries to her family doctor as indication that her injuries were only minor. She submits that the first documented evidence of seeing her family doctor, August 1, 2013, listed complaints of low back pain, severe pain on the right side going to the pelvic area, mainly when she was at rest, and she referenced her accident of December 26, 2012, and that from August 2013 forward the clinical notes and records of her family doctor outline the ongoing complaints she made relating to the accident.

She submits that State Farm failed to take the doctor’s findings into consideration when determining whether her injuries fell within the Minor Injury Guideline. She further alleges that State Farm erred in not taking her medical records into consideration when determining the nature of her injuries, especially that her mood had been low and worsening since 2011. Her visit to him was May 19, 2015. She alleges that this should have been taken into consideration as evidence of a pre-existing condition. She also alleges that State Farm erred in its denial of other treatment plans since it ignored the various disorders referred to in those plans and further ignored the recommendation made in the December 9, 2013 treatment plan that various modalities should be undertaken to overcome the barriers to recovery. Similarly, it ignored the January 30, 2014 treatment plan which outlined specific modalities designed to overcome the barriers to recovery. She also argues that State Farm erred in ignoring her doctor’s conclusion that she should not fall under the Minor Injury Guideline. She alleges that in coming to this conclusion, he had diagnosed adjustment disorder with mixed anxiety and depressed mood, and he noted that “given the serious and recalcitrant nature of the patient’s ongoing physical pain as a direct result of the MVA, this patent should not fall under the minor injury guideline.”

Mrs. Maryam submits that the Insurer’s Explanation of Benefits is defective in that it leaves open the possibility that if Mrs. Maryam had sustained a physical impairment, her injuries might have been outside the Minor Injury Guideline.

With reference to the claim for a special award, Mrs. Maryam particularises as follows:

• State Farm ignored that Mrs. Maryam advised them on the day of the accident that she was involved in a collision and sustained injuries and impairments;
• No claim was set up, no Application for Accident Benefits was sent to her;
• There is no evidence that the Insurer fulfilled their obligation to their client to educate her on the available benefits under her policy;
• As a result, Mrs. Maryam could not access medical and rehabilitation benefits to expedite her policy.

State Farm submits that the claim fails principally on two grounds – firstly, that Mrs. Maryam did not discharge her onus that her injuries fall outside the Minor Injury Guideline, and secondly that her claim fails as a result of inconsistencies in her evidence.

The Arbitrator reviewed the evidence and the law, concluding that the determinative issues in this Arbitration are whether Mrs. Maryam has satisfied, with sufficient evidence, that her injuries fall outside the Minor Injury Guideline, and whether proposed treatment as per the denied treatment plans was reasonable and necessary.

The Arbitrator reviewed the MIG (Minor Injury Guideline), its definitions, and the law. He noted that it is established that the appropriate legal test to apply in determining whether a claimant's impairments fall within the MIG is whether the claimant's injuries are predominantly minor, not simply whether any particular injury is a minor injury. The Arbitrator noted that it is usually a difficult task for an Arbitrator confronted with conflicting opinions to make a decision. Although medical reports constitute evidence which is considered by an adjudicator, in this case neither party chose to have expert testimony, thus the Arbitrator was left only with the written reports to evaluate. Upon review of the reports and the testimony of Mrs. Maryam the Arbitrator dismissed the opinions of one physician due to inconsistencies.

The Arbitrator concluded that Mrs. Maryam’s testimony lacked credibility. She provided no cogent explanation why she failed to mention the accident to her family doctor during five visits following the accident, not until August 2013, which was almost six months post-accident, despite other reports on file which describe significant pain in that period. Her explanation that she only dealt with a single issue per visit is not plausible. Were that the case, she could have scheduled in appointments to discuss her accident related problems. She also suggested that her pattern was to largely self-treat in most cases, but this is contradicted by her family doctor’s notes that she was treated for other issues during that time.

In view of the above reasons, the Arbitrator found that Mrs. Maryam has not met her onus in demonstrating that her injuries fall outside the Minor Injury Guideline, and that Mrs. Maryam has not provided any credible evidence that she is entitled to her claim for medical benefits pursuant to s. 15 of the Schedule. On this basis Mrs. Maryam’s Application for Arbitration was 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.