Without a Written Diagnosis of Chronic Pain there is No Diagnosis

January 26, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Cousins and Certas

Decision Date: November 17, 2017
Heard Before:  Adjudicator Marcel Mongeon

MIG: applicant fails to provide any written diagnosis of chronic pain; without the diagnosis there is no reason to remove him from the MIG limitations; the fact the insurer has paid out more than the MIG monetary limit to date does not mean that the insured’s injuries fall outside the MIG

Mr. Kahlil Cousins hurt in a car accident on October 3, 2013. He was a seat belted driver in a car that was struck on the front side of a car. He recalls hitting his head on the top part of the driver’s door. The airbags did not deploy. Mr. Cousins declined to be transported to the hospital by emergency personnel and left the scene on his own. Mr. Cousins’ neck and back continued to hurt him and he eventually called his cousin to seek medical treatment at a hospital emergency room. He had x-rays taken at the hospital and was told there was nothing broken but was recommended to seek physiotherapy. He sought SABs from Certas, however, when the parties were unable to resolve their disputes through mediation Mr. Cousins applied for arbitration at the FSCO

Issues:

1. Do Mr. Cousins’ injuries or impairments fall within the MIG?
2. Does the fact that Certas has already paid more than $3,500 towards treatment of Mr. Cousins’ injuries or impairments require Certas to deal with the matter outside of the MIG?
3. Is Mr. Cousins entitled to receive the following rehabilitation benefits:
   1. $1,287.00 for chiropractic therapy, dated January 24, 2014;
   2. $3,650.00 for chiropractic therapy, dated February 12, 2014;
   3. $3,321.00 for chiropractic therapy, dated August 26, 2014;
   4. $8,070.00 for a chronic pain program, dated May 4, 2015;
   5. $3,251.00 for chiropractic therapy, dated August 24, 2015?
4. Is Mr. Cousins entitled to receive payments for the following costs of examinations:
   1. $265.00 for a disability certificate assessment, dated October 16, 2013;
   2. $265.00 for a disability certificate assessment, dated February 4, 2014;
   3. $265.00 for a disability certificate assessment, dated May 29, 3014;
   4. $2,270.00 for a social work assessment, dated November 10, 2014;
   5. $265.00 for a disability certificate assessment, dated November 18, 2014;
   6. $2,270.00 for a social work assessment, dated March 30, 2015;
   7. $265.00 for a disability certificate assessment, dated March 31, 2015;
   8. $1,995.32 for a psychological assessment, dated April 13, 2015;
   9. $265.00 for a disability certificate assessment, dated August 26, 2015?
5. Is Mr. Cousins entitled to receive interest on any benefits?

 Result:

1. Mr. Cousins’ injuries are within the MIG.
2. Even with payments made by Certas in excess of $3,500, Certas can continue to adjust this claim within the MIG.
3. No other benefits are payable as a result of the answers to the previous questions.

Mr. Cousins lived full time with his parents at the time of the car accident and continues to do so. He is employed at a retail tile store in Vaughan. At the time of the car accident he was an order picker using a forklift truck. He started working there in August 2012. After the car accident, Mr. Cousins’ employer made accommodations to cope with any limitations Mr. Cousins faced as a result of his post-accident pain. Although there was some missed work after the car accident, there were no other employment implications for Mr. Cousins arising from the car accident.

Mr. Cousins testified to limitations in his abilities to lift weights due to the post accident pain. Although as a young man, Mr. Cousins was able to bench press 240 lbs., he is now lucky to get to 80 lbs.

After the car accident, Mr. Cousins started treatments with a chiropractor which he found helped with his back pain. Mr. Cousins moved, and as a result now finds it difficult to attend treatment. Mr. Cousins acknowledged that he has not taken any medications for pain. His family doctor’s notes show only four post accident visits, and do not suggest any continuing pain problems.  A social worker conducted an examination which concluded “[Mr. Cousins] does not fall under the MIG because of apparent psychological symptoms and other social issues, including social anxiety, and isolation.” She recommends 10 to 12 sessions of counselling. The social worker admitted on cross-examination that she has no specific education regarding car accident assessments, that she did not do psychometric testing, nor did she review notes from his family doctor.

The Arbitrator reviewed the testimony of the chiropractor who indicated that treatment and been useful to date, but that Mr. Cousins suffers from chronic pain and required a treatment plan to deal with the issue. It was the chiropractor’s opinion that Mr. Cousins injuries fell outside the MIG. He referred Mr. Cousins to his brother a general surgeon to provide a report. No where in the report or clinical records is there a clear diagnosis of chronic pain.

An IE prepared by a Physiatrist concluded that Mr. Cousins suffered sprains and strains from the car accident in the cervical spine and lumbar spine regions. He opined that two of the proposed treatment plans were not considered reasonable and necessary. A second IE performed by an OT concluded the same thing, that Mr. Cousins suffered from soft tissue injuries.

The Arbitrator noted that although Certas paid more than $3500 to date on this claim, it does not mean that Mr. Cousins is removed from the MIG. There is no language in the schedule that suggests that if the $3,500 limit is exceeded, the claim is no longer a minor injury. The characterization of an injury stays as a minor injury no matter how much is spent for its treatment.

The onus is on Mr. Cousins to show the treatment reasonable and necessary. Mr. Cousins submits that his diagnosis of chronic pain is sufficient to have him removed from the MIG. The Arbitrator was not satisfied that a finding of chronic pain has ever been made out with respect to Mr. Cousins, particularly as there is no written record of such a diagnosis.

On the basis of the evidence and testimony the Arbitrator determined that Mr. Cousins injuries fall within the MIG and monetary limits of the MIG apply.

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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.