Insured successful in IRB claim - injuries fall outside of MIG

February 10, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Lamasan and Certas - Income replacement benefits (IRBs); access to treatment; question of credibility; thoroughness of assessments; consistency of testimony; chronic pain

Lamasan and Certas

Decision Date: January 23, 2017
Heard Before: Adjudicator Lynda Tanaka

Mr. John Lamasan, was injured in a car accident on December 14, 2013. He was driving his 2002 Toyota Corolla on the QEW in poor weather conditions when a sudden white out took away all visibility of the traffic in front of him and other drivers.  As the cars in front became visible, he brought his vehicle to a stop without hitting anyone, but another vehicle did hit him and pushed his vehicle into yet another vehicle.  He testified that his vehicle ended up at right angles to the direction of travel and had to be towed. His car was written off.  His initial injury complaints were pain in the lower back and left wrist, headaches and “nervousness in and around vehicles

He sought accident benefits from Certas payable under the Schedule.  The parties were unable to resolve their disputes through mediation, and Mr. Lamasan applied for arbitration at the FSCO.

The issues in this Hearing are:

1. Is Mr. Lamasan entitled to receive a weekly income replacement benefit at the rate of $111.53 per week, from December 21, 2013 to September 20, 2014, less any amounts paid?
2. Are the benefits to which Mr. Lamasan is entitled as a result of the motor vehicle accident limited to the benefits under MIG?
3. Is Mr. Lamasan entitled to receive a medical benefit claimed in the amount of $2,572.48, for psychological treatment?
4. Is Mr. Lamasan entitled to payment for the cost of an examination in the amount of $2,001.78, for a psychological assessment?
5. Is Mr. Lamasan entitled to receive payment for an expense of $2,260.00, for an Accountant’s Report?
6. Is Mr. Lamasan entitled to payment for the cost of examination in the amount of $1,994.72, as per an OCF-18 dated November 4, 2015?
7. Is Mr. Lamasan entitled to interest for the overdue payment of benefits?
8. Is either party entitled to its expenses of the Arbitration?

Results:

1. Mr. Lamasan is entitled to receive a weekly income replacement benefit at the rate of $111.53 per week, from December 21, 2013 to September 20, 2014, less any amounts paid.
2. The benefits to which Mr. Lamasan is entitled as a result of the motor vehicle accident are not limited to those under the MIG.
3. Mr. Lamasan is entitled to receive a medical benefit claimed in the amount of $2,572.48, for psychological treatment.
4. Mr. Lamasan is entitled to payment for the cost of examination in the amount of $2,001.78, for a psychological assessment.
5. Mr. Lamasan is entitled to receive payment for an expense of $2,001.78, for an Accountant’s Report.
6. Mr. Lamasan is entitled to payment for the cost of examination in the amount of $1,994.72, as per an OCF-18 dated November 4, 2015.
7. Mr. Lamasan is entitled to interest for the overdue payment of benefits.
8. Mr. Lamasan is the successful party and is entitled to his expenses.

EVIDENCE AND ANALYSIS:

The Arbitrator reviewed the legislation and case law noting that the claims are for IRBs and for medical benefits under the Schedule. The Arbitrator noted that under the Schedule the Insurer is liable to pay all reasonable and necessary medical benefits incurred by or on behalf of the insured person as a result of the accident.  Under s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable with respect to an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500.00, less the sum of all amounts paid in respect of the insured person in accordance with the MIG. There is no dispute that Mr. Lamasan bears the onus to establish that his injuries fall outside the MIG scope of coverage.

Certas’ resistance to these claims largely rests on an attack on the credibility of Mr. Lamasan

The Arbitrator examined the evidence and noted that nowhere in any of the medical reports is there any suggestion that Mr. Lamasan has exaggerated or amplified his impairments or pain or inhibited his movements voluntarily during assessments, and that in several assessments there are direct findings to that effect.

To establish that a medical Treatment and Assessment Plan is reasonable and necessary, Mr. Lamasan must show the sufficiency of the medical reasons supporting the plan and the effectiveness of the treatment.

The accident occurred on a Saturday and Mr. Lamasan went to see his family doctor on the following Monday.  His doctor ordered x-rays of the back and wrist, prescribed Tylenol with Codeine, provided reassurance, and recommended physiotherapy.  The doctor noted tenderness from L1 to L5 and over the SI joint.  He noted guarding due to pain and reduction in the range of motion he expected in both the back and left wrist, with the left wrist being swollen.  The x-rays did not show any fractures.

Mr. Lamasan obtained treatment as recommended by his family doctor.  An OCF-3 Disability Certificate was completed January 3, 2014 indicating that Mr. Lamasan was substantially unable to perform the essential tasks of his employment at the time of the accident as a result of and within 104 weeks of the accident, and that he could not return to work on modified hours and/or duties.  It also indicated that Mr. Lamasan had a complete inability to carry on a normal life and that he was unable to continue in his education program.  The Report said Mr. Lamasan suffered a substantial inability to perform housekeeping and home maintenance services that he normally performed before the accident and anticipated the duration to be 9 to 12 weeks.  There was no pre-existing disease, condition or injury.  He diagnosed sprains and strains of joints and muscles in the lumbar spine, right sacroiliac joints and lumbosacral muscle, strain of muscles and tendons on the left forearm and of the joints and muscles in the left wrist joint and left elbow joint.  There was a diagnosis of acute strain of the joints and muscles of the thoracic and cervical spines.

The Application for Accident Benefits, signed by Mr. Lamasan January 17, 2014, indicated that he returned to school on the Monday after the accident.  He also indicated that his injuries prevented him from returning to work.

Certas arranged an independent assessment conducted by a psychologist, and an occupational medicine practitioner with respect to the income replacement benefits and whether or not the MIG applied.

The report noted Mr. Lamasan’s ongoing complaints of pain in his back.  He had good range of motion in the hips and knees but full range of motion in the other joint areas.  Under testing for range of motion for the thoracolumbar spine, she noted that he reported pain under testing in the right lower back.  Her opinion set out in her report, dated July 21, 2014, was that Mr. Lamasan had reached maximal medical recovery and that there was no objective physical impairment.  Her opinion was that he suffered uncomplicated soft tissue injuries of the spinal column and left wrist that are minor as defined in the Schedule.  Her opinion was that he was not substantially unable to perform the essential tasks of his employment but when she was asked to specify the description of the employment and identify the essential tasks, she wrote “not applicable”.

A Disability Certificate completed by Mr. Lamasan’s family doctor, , was forwarded to Certas on July 30, 2014.  The family physician’s position was directly opposed to that the IE.  He confirmed that he had prescribed Tylenol 3 for Mr. Lamasan’s pain and that, in his view, Mr. Lamasan was substantially unable to perform the essential tasks of his employment. There are repeated references in the family physician’s clinical notes and records to Mr. Lamasan suffering pain in his lower back and having limitations in range of motion.  The notes are made with headings “Subjective” in which he reports the reason for the patient visit, and “Objective” in which he reports on his observations.  Prior to completing the OCF-3 Disability Certificate in July 2014, the family physician saw Mr. Lamasan on June 23, 2014, 6 months after the accident.  The reason for the visit was “occasional back pains, steady, worse with movement, took Tylenol with little relief”.  Mr. Lamasan reported that he did his exercises and attended physio once a week after completion of a 15-week program.  He reported being “irritable and had a fear of driving, usually keeping excessive distances ahead of him, but with no nightmares”.

Over 18 months after the accident, when Mr. Lamasan continued to report pain in his back, he was sent for an MRI of his back.  The MRI did not reveal any disc protrusion or spinal stenosis that might account for the pain.  The pain had long since met the definition of “chronic”, and the family doctor sent him to a chronic pain specialist, who recommended that Mr. Lamasan do more core exercises.  An orthopaedic assessment was conducted noted that Mr. Lamasan can “manage chores” although repetitive or sustained bending causes back pain.  It also noted that Mr. Lamasan indicated that his nursing work does have physical demands including transfers, assisting patients with gait problems, standing, walking and giving medications, but he has not lost time at work.  Finally, the report noted “It is possible that Mr. Lamasan is developing a Chronic Pain Disorder as a result of the MVA which is a behavioural disorder in which physically derived pain is perceived as more intense, intrusive, disabling and more recalcitrant to therapy.”

The Chronic Pain Specialist’s opinion was that the spinal impairment “is serious as it has interfered with [Mr. Lamasan’s] sense of well-being, quality of life and ability to manage his pre-accident recreational activities byy (sic) compromising spinal functions important for managing this activity. These spinal and the emotional impairments have not improved significantly, from a functional perspective, and are not expected to improve substantially in the future.”

The Arbitrator reviewed the rest of Mr. Lamasan’s medical records and found the concurred with these assessments.

Certas arranged an independent assessment of Mr. Lamasan on March 30, 2016. The purpose of the assessment was to assess the impairments suffered by Mr. Lamasan as to whether or not they were minor within the meaning of the MIG and also whether or not a treatment plan OCF-18, in the amount of $1,240.00 for chiropractic services, was reasonable and necessary.  On examination of Mr. Lamasan, the IE concluded that there were no objective findings of any impairment, that the injuries were predominantly minor in nature and no further formal or clinic based treatment would be warranted or necessary. Several IEs followed which concluded the same.

The Arbitrator noted that at the time of the accident, Mr. Lamasan was a student pursuing his nursing degree and was in the last year of a four-year program.  He had worked at a retail store selling aquarium fish during the period February 22, 2011 to August 17, 2013.  He testified that he worked there part-time during school and full-time during the summer.  Included in the employment file  is a job application, dated May 24, 2012, which includes the question, “CAN YOU LIFT UP TO 70 LBS.?” His work involved assisting customers (standing and walking) and other duties as required of general help.  Heavy lifting was required when the store received a delivery of shipping crates of water containing new fish stock to be sold, as well as when he carried and emptied buckets of water to refresh the water in the display tanks on a regular basis.  The display tanks were stored on multiple levels.  After the accident, he did not return to work there because of his injuries.  He described the impact of his injuries in the Statutory Declaration as follows: Lifting – My wrist and lower back pain impacted my function, Pushing/Pulling Carrying – wrist and back pain impacted this function, Repetitive movement of my hand – wrist pain, Walking, Standing Sitting – Lower back pain.

Mr. Lamasan testified that his injuries to his back interfered with his bending and he was concerned that he would aggravate and later re-aggravate his injuries. 

Certas also attacks the credibility of Mr. Lamasan’s claim because in June 2014, he took a two to three-week position as a driver for a businessman who required a driver to take him from one business to another in the western part of the GTA.  He was finished every work day by 4:00 p.m.  Certas had not paid any income replacement benefits by this stage, despite consistent and constant efforts by Mr. Lamasan’s representatives.  It is quite understandable that Mr. Lamasan would have been forced to take any job he could get and there were certainly advantages for him in this job.  It appears he had no duties other than to drive the businessman and, therefore, while the businessman was in the office, Mr. Lamasan would have been free to move around, stretch, walk and do whatever he needed to do so as to address any back pain that might be caused by sitting in the car driving.  He was not lifting, carrying weight and bending very much in that job.

Certas’ position is that the complaint of nervousness driving is not a genuine complaint because Mr. Lamasan took this job.  Mr. Lamasan has never said that his nervousness made it impossible for him to drive; his complaint is that he was irritable and prone to road rage as well as being nervous, and that he avoided driving where he could. Mr. Lamasan was hired in a permanent full-time position as a nurse at a hospital and commenced work on September 20, 2014.

The Arbitrator concluded that he preferred the evidence of Mr. Lamasan and the opinion of Mr. Lamasan’s family doctor as to whether or not his impairments made him substantially unable to perform the essential tasks of his employment, over that the IE. 

The Arbitrator found that Mr. Lamasan has established that he was substantially unable to carry out the essential tasks of his employment in the retail store for which he had been employed for 26 weeks of the 52 weeks prior to the accident and that he is entitled to income replacement benefits for the period from the date of the accident to his commencement of work as a nurse on September 20, 2014.

Upon review of the entire file, the Arbitrator noted that Certas was prepared to pay benefits totalling $5,844.75, well above the MIG limit.  Therefore, Certas’ position was not consistent that Mr. Lamasan still fell within the MIG.  No evidence was led by Certas to explain why it approved this treatment plan over the MIG limit.

The Arbitrator found that on the balance of probabilities, there is sufficient evidence concerning chronic pain to find that the impairments no longer fall within the MIG definition.  Mr. Lamasan continues to suffer pain which interferes with his normal activities, bearing in mind his age and occupation, for which there is ample expert observation.  The Arbitrator noted that Mr. Lamasan has been an assiduous compliant patient, who has actively participated in his treatment.  He was an active, athletic person who ran regularly prior to the accident.  He tried to resume running after the accident and his back pain prevented him from doing so.  He was compliant with his treatment approved by Certas and he has continued to get treatment using his collateral benefits to fund it.  He has changed service providers when he felt the treatment progress had stalled.  Despite these efforts, he continues to suffer pain and his family doctor has noted chronic pain and referred him for that assessment. 

The Arbitrator concluded that Certas has approved treatment in excess of the MIG limit and therefore cannot now argue that the MIG limit applies to refuse treatment plans that are otherwise reasonable and necessary.  The Arbitrator also found Mr. Lamasan’s impairments, if they first fell within the MIG, no longer do so, and he will not achieve maximal medical recovery if he were to be limited to the $3,500.00 limit under the MIG. The Arbitrator determined that Mr. Lamasan is entitled to interest on overdue benefits.

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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.