Questions about accuracy of medical assessment - YXY and Personal - 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT)

October 23, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

YXY and Personal - 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT)

Date of Decision:     August 17, 2017
Heard Before: Adjudicator Deborah Neilson

MIG: applicant fails to provide evidence that injuries fall outside MIG; applicant speaks no English yet no proof provided of how she communicated with assessors; assessments given little weight as doubt lies in what was disclosed to them

YXY was a pedestrian when she was hit by a car on December 9, 2014.  She claimed benefits from Personal pursuant to the SABs for attendant care benefits, chiropractic services, and payment for a psychological assessment and an attendant care assessment.

The Personal denied the benefits claimed claiming YXY’s injuries are predominantly minor injuries as defined in the MIG subject to a maximum amount payable of $3,500.00.

YXY disagrees with The Personal’s denials and its decision to deal with her treatment under the MIG.  She claims that her injuries fall outside the MIG because of the onset of chronic pain and psychological injuries.  She submitted an application to the LAT.

Issues:

1. Do YXY’s injuries predominantly fall within the MIG?
2. s YXY entitled to attendant care benefits at the rate of $2,431.64 per month from December 9, 2014 to date?
3. Is YXY entitled to receive a medical benefit in the amount of $1,785.18 for chiropractic services denied by Personal on January 14, 2015?
4. Is YXY entitled to payments for the cost of examinations in the amount of $2000.00 for a psychological assessment denied by Personal on March 11, 2015?
5. Is YXY entitled to payments for the cost of examinations in the amount of $1340.00 for an attendant care assessment denied by Personal on January 14, 2015?
6. Is YXY entitled to interest for the overdue payment of benefits?
7. Is YXY entitled to her costs of the appeal because Personal’s conduct or course of conduct has been unreasonable, frivolous or vexatious or Personal has acted in bad faith?

Does the MIG apply?

To prove that she is entitled to the benefits claimed, YXY must prove on a balance of probabilities that she did not sustain a predominantly minor injury and that her chronic pain and psychological impairments are not just sequelae from her minor injuries.  YXY argues that neither the onset of chronic pain nor her psychological injuries are properly considered and she asserts that her “chronic pain” takes her out of the MIG.

RESULT

The Adjudicator found that YXY sustained predominantly minor injuries from the accident in accordance with the definition in the Schedule, and that the MIG applies to her.  As a result, her claim for the following benefits is dismissed:

1. Attendant care benefits at the rate of $2,431.64 per month from December 9, 2014 to date;
2. Cost of examination benefits in the amount of $1,340.00 for an attendant care assessment.
3. The claim in the amount of $1,785.18 for chiropractic services is a claim for a chiropractor’s travel expenses, which is not covered under the MIG.  Accordingly, this claim is dismissed.
4. YXY’s claim for the cost of an examination in the amount of $2,000.00 for a psychological assessment by Perfect Choice is payable, subject to the limit of $215.00 in the MIG for the cost of an initial assessment. 
5. YXY’s claim for costs is dismissed. 

The Adjudicator reviewed the medical evidence, and the law. He noted that no evidence was submitted to explain whether the spurring of the right knee or the osteoarthritis of the neck were related to the accident.  Accordingly, he found that the osteoarthritis and the spurring are not accident-related.

YXY relies on the in-home attendant care needs assessment report dated December 20, 2014 reporting that she was experiencing mobility problems.  The assessor made no notes as to whether she had an interpreter to communicate with XYX who only speaks Cantonese. On this basis the Adjudicator gave little weight to the assessment.

Evidence from a family physician who conducted an insurer’s examination diagnosed YXY with a soft tissue injury to her neck, right knee and right shoulder from the accident. The evidence supports that YXY sustained soft tissue injuries, which taken alone would mean YXY sustained a minor injury as defined in s. 3 of the Schedule.

YXY submits that she has chronic pain and that this condition takes her out of the MIG.  She relies on the FSCO decisions in Ali and Ferozuddin and Certas Direct Insurance Company and in Arruda and Western Assurance Company. Both decisions dealt with the diagnosis of chronic pain.

The Adjudicator noted he is not bound by FSCO decisions, however, he agreed with the reasoning that when chronic pain causes functional impairment and disability, it takes one out of the MIG.  The Adjudicator also agree with the reasoning y that it is not ongoing pain alone that takes an applicant out of the MIG, but rather chronic pain syndrome. 

For chronic pain to be more than sequelae from the soft tissues injuries enumerated in s. 3 of the Schedule, it must be chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet YXY’s burden to show that chronic pain is more than mere sequelae.

On review of the medical reports the Adjudicator determined that YXY has not proven that the chronic leg pain diagnosed was caused by the accident as the record on that issue is not clear. YXY has not provided any evidence to indicate the spurring on the patella or the varicose veins recorded in the x-rays are related to the accident. No explanation of why an accident injury would lie dormant for a year and then suddenly arise without provocation was provided.  YXY has not satisfied the Adjudicator, on the balance of probabilities, that her pain complaints, which arose a year after the accident, were caused by the accident. 

YXY submits that she sustained a psychological injury from the accident, as a result of which she does not have a minor injury.  She has the onus of showing that she has a psychological impairment and not just psychological symptoms or sequelae arising from the soft tissue injuries.  Support for this proposition is found in the MIG, which states that it is focused on the application of a functional restoration approach in the management of minor injuries in the acute and sub-acute phases of the injury. 

YXY submits that a psychologist found her to be suffering from mixed anxiety and depressive disorder.  No reports from the psychologist were provided. Only the OCF-18 treatment plan prepared by him dated January 19, 2015, recommending a psychological assessment was given as evidence.  Personal submits that the diagnosis in the OCF-18 treatment plan does not meet YXY’s burden of proof in showing that she sustained a psychological impairment because Part 9 of the OCF-18 affirms that an in-depth interview and inventories are required to determine the presence and extent of any psychological impairment. The Arbitrator agreed with Personal.

On the basis of the evidence the Adjudicator found that because YXY sustained predominantly minor injuries, the MIG applies to YXY.

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