December 16, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Hussein and State Farm
Decision Date: November 11, 2017
Heard Before: Adjudicator Paulina Gueller
ENTITLEMENT TO BENEFITS: applicant fails to submit treatment plans to tribunal; applicant fails to make case that his pre-existing injuries were worsened by the accident; applicant fails to show injuries caused by car accident
Mr. Muhiadin Hussein was injured in a car accident on September 6, 2014, and sought accident benefits from State Farm but when mediation failed he applied for arbitration at the FSCO.
- Is Mr. Hussein entitled to receive medical benefits for:
- $2,080.41 for services set out in an unidentified treatment plan dated March 22, 2015;
- $3,785.90 for services set out in an unidentified treatment plan dated September 22, 2014;
- 1,302.40 for services set out in an unidentified treatment plan dated January 21, 2015?
- Is Mr. Hussein entitled to payments for the cost of examinations for two unidentified cost of examinations for psychological assessments in the following amounts:
- Is Mr. Hussein entitled to interest for the overdue payment of benefits?
- Mr. Hussein is not entitled to the medical benefits in dispute for this Arbitration.
- Mr. Hussein is not entitled to the cost of examinations in dispute for this Arbitration.
- Mr. Hussein is not entitled to interest, as no benefits are payable.
Motions at the commencement of the Hearing
Motion to exclude Mr. Hussein’s documents from the Hearing: in this particular case Mr. Hussein cannot expect that consciously not complying with the law is an exceptional circumstance. For those reasons, the Arbitrator ruled to exclude Mr. Hussein’s documents.
Mr. Hussein was driving a 2005 Nissan Quest into the underground garage of his residential building, when the garage door closed, hitting the windshield and roof of the car. He stopped for a moment and continued driving to his parking spot.
Mr. Hussein testified that his body did not touch any part of the vehicle and that he was in shock. He continued driving to his parking spot and walked to the management office, but it was closed. Mr. Hussein testified that before the car accident he had lower back, neck and hip pain, arthritis, and Human Leukocyte Antigen. However, with the impact of the accident, the pain increased, and the lower back and hip pain radiated to the legs.
Prior to the accident, Mr. Hussein received treatment for massage, chiropractic and electric pads. However, he felt that that the treatment was not helping him. His treating Chiropractor, recommended treatment with the decompression machine. Mr. Hussein testified that the only treatment that made him feel better was receiving 10 sessions with the decompression machine. However, he discontinued the treatment because he could not continue paying. In March 2014 was referred to a Physiatrist. She requested a bone scan and an MRI and referred him to an Orthopedic Surgeon, who reviewed the x-rays and MRI, increased Mr. Hussein’s pain medication dosage and advised him there was nothing further he would be able to do for Mr. Hussein. Mr. Hussein testified that after the car accident, he visited Dr. Berih, his former family physician. The doctor recommended physiotherapy and prescribed him medication for pain.
Mr. Hussein’s family doctor testified that Mr. Hussein has a history of chronic back pain dating at least as far back as 2009, and HLA-B27. After the accident he referred Mr. Hussein for physiotherapy. However, the first note in his CNRs regarding the MVA is on October 28, 2014.
A chiropractor testified that prior to the MVA, he treated Mr. Hussein from March to July 2014. Mr. Hussein was referred for a back spasm. After some treatments, Mr. Hussein felt better, but was discharged because he could not pay for treatment. On September 22, 2014, he prepared an OCF-23, in which under Part 6 he noted in regard to the injuries related to the MVA, that Mr. Hussein underwent investigation and received treatment in the past, and that the investigation and treatments were included in the family doctor’s consultation, prescription medication, MRI of the neck and back and neurologist’s report.Noted the barriers to recovery were: “Chronic pre-existing musculoskeletal/neurological conditions involving the cervical and lumbar spine. Disc pathology with associated radiculopathy. Housekeeping demands, Psychological factors as it relates to the accident. Care giving duties which aggravates his musculoskeletal injuries, chronic smoker”.
Mr. Hussein submitted that after the MVA, he visited his family physician on September 15, 2014 regarding his low back pain, mood irritability and physical limitations. On September 22, 2014, he attended rehab by recommendation of his family doctor and his initial evaluation revealed neck pain, severe low back pain with radiation to the left leg and irritable mood. Mr. Hussein submitted that four treatments plans related to physical rehabilitation and psychological evaluation were submitted to State Farm. However, State Farm denied the treatments plans stating that Mr. Hussein’s injuries fell under the MIG and that the treatment plans were not reasonable and necessary. Also, it is Mr. Hussein’s submission that State Farm responded to the OCF-18s outside of the 10 business day limitation period as noted within Section 38 of the Schedule.
Mr. Hussein submits that according to his family doctors, treatment facility, and all his treating physicians, and his chronic pain physician at the Rothbart Centre for Pain Care were consistent that his injuries were not treatable under the MIG and that he is therefore entitled to treatment beyond the limits of the MIG.
State Farm submitted that Mr. Hussein entered his parking garage following another car when the garage door had opened. Mr. Hussein did not use his own remote fob and as a result, the garage door came down onto his windshield and roof, but the airbags did not deploy. Mr. Hussein visited his family doctor on September 9, 15, 23, 29 and October 14, 2014 without mentioning the accident. Mr. Hussein mentioned the accident on October 28, 2014. State Farm also stated that Mr. Hussein submitted an application for Accidents Benefits (OCF-1) on October 6, 2014. Therefore, the treatment plan prepared on September 23, 2014 was prepared before Mr. Hussein submitted an OCF-1 to State Farm.
State Farm submitted pre-accident medical records from different physicians note which show extensive pain, sleep problems, back problems, hip problems, chronic pain, imaging for his cervical spine, and was diagnosed with degenerative disc disease, and degenerative changes to his hips. S tate Farm submitted that Mr. Hussein’s impairments are prior to the MVA. Further, a pre-existing condition does not automatically exclude Mr. Hussein from the MIG. It may only apply in exceptional circumstances where there is compelling evidence that Mr. Hussein will be unable to achieve maximal recovery under the MIG. However, Mr. Hussein failed to deliver an Arbitration Brief and has presented no evidence from an expert supporting that the treatment plans in dispute are reasonable or necessary, or that his alleged accident-related impairment falls outside the MIG.
The Arbitrator reviewed the evidence and the law. He analyzed whether Mr. Hussein’s alleged impairments and/or injuries are directly related to the MVA. He noted that all the injuries pre-existed the accident, that Mr. Hussein did not mention the accident for several doctor visits, that Mr. Hussein did not strike any part of the car, had no lacerations. In order to be excluded from the MIG Mr. Hussein must show that the injuries were worsened by the accident, and that they will improve with treatment which is reasonable and necessary. The Arbitrator noted that Mr. Hussein did not file the alleged treatment plans (“OCF-18s”) at the Hearing. Therefore, there is insufficient information and evidence to support an Order regarding these medical benefits.
On this basis, there is no compelling evidence that Mr. Hussein suffered any specific impairment or injury, as defined by section 3 of the Schedule, directly related to the MVA, or that his pre-existing condition was aggravated by the MVA, and Mr. Hussein failed to prove that he has suffered an impairment or injury directly related to the MVA, or that his pre-existing condition was exacerbated by the MVA. Therefore, he has no entitlement for the requested medical treatments under the Schedule.