Too many inconsistencies in assessments leads to denial of benefits - CA v Dominion - 16-004033 v The Dominion 2017 CanLII 63662

October 25, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

CA v Dominion - 16-004033 v The Dominion 2017 CanLII 63662 (ON LAT)

Date of Decision: August 4, 2017-08-04
Heard Before: Adjudicator Rebecca Hines

MIG: inconsistencies in the assessment reports and lack of evidence to substantiate the findings; applicant fails to provide adequate proof that treatment is reasonable and necessary; reports are contradictory

CA was injured in a car accident on March 13, 2015 and he applied to Dominion for benefits, but when they denied claims for an attendant care benefit, medical benefits and examination expenses on the basis CA’s injuries to be minor and subject to the Minor Injury Guideline CA applied to the LAT.

CA argues that he suffers from chronic pain and a psychological impairment as a result of the accident, and that these impairments remove him from the MIG.  Recent case law from the FSCO as well as the LAT have supported that a diagnosis of chronic pain or psychological impairment may remove an individual from the MIG.

Dominion maintains that CA’s injuries are minor and that he has failed to provide compelling medical evidence from a health practitioner that his accident-related injuries are not minor, or that he had a pre-existing condition that would prevent him from achieving maximum medical recovery under the MIG.

Issues:

1. Did CA suffer predominantly minor injuries as a result of the March 13, 2015 car accident?
2. If CA’s injuries fall outside of the MIG, is he entitled to an attendant care benefit in the amount of $538.35 per month from March 13, 2015 to date and ongoing?
3. If CA’s injuries fall outside of the MIG, is he entitled to the following medical benefits and examination expenses:
   1. $211.00 for physiotherapy service in a treatment plan dated August 27, 2015
   2. $749.60 for physiotherapy services in a treatment plan dated April 5, 2016;
   3. $2,486.00 for an in-home assessment in a treatment plan dated May 26, 2015
   4. $2,697.30 for a chronic pain assessment in a treatment plan dated November 6, 2015
   5. $2,697.30 for a psychological assessment in a treatment plan dated November 4, 2015.
4. Is CA entitled to interest on any overdue payment of benefits?
5. Is Dominion entitled to an order of costs in this proceeding?

RESULT:

The Adjudicator found CA suffered predominantly minor injuries, and did not provide compelling evidence of a pre-existing medical condition that would remove him from the MIG.

1. CA is not entitled to payment of attendant care benefits as he sustained a minor injury. 
2. In light of the findings on the MIG, there is no need to determine whether the treatment plans for medical benefits and examination expenses are reasonable or necessary.
3. Dominion is not entitled to an order for costs.      

The Adjudicator reviewed the law and the evidence. The Adjudicator examined section 3 of the Schedule defining minor injury. He noted that to be found outside the MIG, CA must provide compelling evidence that he has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit. The Onus is on CA to prove this.

The Arbitrator noted that with the exception of the chronic pain assessment, the bulk of the physicians list minor injuries.  There was one OCF-18 submitted that did not list minor injuries but there was no medical explanation with respect to why. A review of the treatment notes showed that CA started attending treatment less and less throughout time which would indicate that his injuries were healing.  The IEs conducted by two physiatrists over a year and a half corroborated the diagnosis that CA suffered a minor injury.  The reports indicated CA demonstrated a full range of motion, a normal neurological examination and no functional limitations or restrictions.  Finally, the evidence demonstrates that there was a year and a half gap between requests for treatment.  In addition, Dominion contends that, to date, CA has only incurred $2,750.00 of the $3,500.00 approved treatment.  No explanation from CA was given with respect to why that is the case.

It is clear from the diagnosis listed in the forms and by the treating physicians that CA’s injuries are minor and fit within the definition of the MIG.   However, before a final conclusion can be reached an analysis must be done on whether or not CA suffers from chronic pain as a chronic pain diagnosis would remove him from the MIG. 

CA asserts that he suffers from pain on a daily basis and, as a result, was referred ussef for a chronic pain assessment.  A report dated March 21, 2016 diagnosed CA with chronic pain, chronic myofascial strain to the cervical and lumbar spine and mood and adjustment disorder.  CA argues this chronic pain diagnosis removes him from the MIG.

The Adjudicator found that CA does not suffer from chronic pain because the chronic pain specialist was provided with minimal clinical notes and records prior to his assessment. The report indicates that CA was involved in a previous motor vehicle accident in October 2011 and sustained a back injury for which he did not seek treatment. CA claims that the 2015 accident exacerbated his pre-existing back injury. Nevertheless, other than what is reported to the assessors, no other evidence or documentation was submitted to support this pre-existing injury.  Secondly, the Adjudicator agreed with Dominion that the bulk of the report relies on CA’s self-reporting of his pain not the doctor’s objective physical examination.  In addition, the report shows many inconsistencies. Third, the in-home assessment completed by an Occupational Therapist, is contradictory with respect to CA’s physical limitations. No explanation was provided with respect to this significant difference of opinion.

Due to the inconsistencies in the reports of CA’s own assessors, the lack of corroborating evidence and the results of the insurer examinations, I do not find that CA suffers from chronic pain as a result of the accident.  Furthermore, CA has yet to incur all approved medical treatment.

The Adjudicator found that CA does not suffer from a psychological impairment because the OCF-18 completed dated December 22, 2015, nine months post-accident, lacked details with respect to a psychological impairment. The only evidence submitted to support that CA suffers from a psychological impairment is the chronic pain report in which diagnoses CA with mood and adjustment disorder.  The Adjudicator found too many inconsistencies in the report for it to be reliable.   Consequently, due to the inconsistencies in the report and lack of evidence to substantiate the findings, the Adjudicator did not find that CA suffered from a psychological impairment as a result of the accident that would remove him from the MIG.

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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.