May 09, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Peel and Wawanesa
Date of Decision: April 10, 2017
Heard Before: Adjudicator Deborah Anschell
Entitlement to Benefits: MIG Threshold; injuries do not exceed the established threshold; onus of proof on applicant; treatment plans deemed reasonable and necessary.
Mr. Daniel Peel was injured in a car accident on March 15, 2013 when he was struck from behind by a school bus and crashed into the rear of the car ahead of him. He lost consciousness. He sought accident benefits from Wawanesa. When mediation failed, he applied for arbitration at the FSCO.
- Do Mr. Peel’s injuries come within the Minor Injury Guideline?
- Is Mr. Peel entitled to receive medical benefits for the following:
- $233.20 for chiropractic treatment in accordance with a treatment and assessment plan, dated June 23, 2014?
- $1,601.00 for chiropractic treatment provided in accordance with a treatment and assessment plan, dated November 13, 2014?
- Is Wawanesa liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Peel?
- Is Mr. Peel entitled to interest on the overdue payments?
- Mr. Peel’s injuries do not come within the Minor Injury Guideline.
- Mr. Peel is entitled to medical benefits for the following:
- $233.20 for chiropractic treatment
- $1,601.00 for chiropractic treatment
- Wawanesa is not liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Peel.
- Mr. Peel is entitled to interest for the overdue payment of benefits.
Mr. Peel was 47 at the time of the accident. At the time of the accident, Mr. Peel was building a business, involved with post-production for film and television. In his role as the owner of this enterprise, he handled many responsibilities including supervising mixing sessions, administrative responsibilities, payroll, and human resources. He was often required to move equipment, and participated in client dinners. He occasionally worked seven days per week. Prior to the accident, the family resided in a townhouse, with five flights of stairs. After the accident, Mr. Peel and his family moved to a ground floor townhouse, with only one flight of stairs. Mr. Peel had no pre-existing or previous back injuries.
Following the accident Mr. Peel was taken to St. Joseph’s Health Centre by ambulance. He experienced immediate neck and chest pain. Mr. Peel spent the day at the hospital, and then returned home. Three days after the accident Mr. Peel saw his family doctor. He complained of muscle pain in his initial visit. A few weeks later, Mr. Peel went back to the doctor with back and neck pain. Mr. Peel returned a day later to obtain a disability form.
After a month, Mr. Peel’s complaints were headaches, ringing in his ear, and pain in his neck and back. He was prescribed pain medication, and told to take four weeks off work. Mr. Peel took prescription medication for a short time, and then switched to non-prescription pain medication. Mr. Peel initially took four weeks off work. When he returned, his employees assisted with some of his duties, including audio, editing and sound. He was diagnosed as having tinnitus, with constant ringing in both ears.
Mr. Peel testified that he noticed shortcomings upon his return to work. He wasn’t as focused on sales as he had been in the past. He had less client interaction, and was not as outgoing. Ultimately, Mr. Peel sold his business to a competitor. His entitlement to collateral benefits through his business continued for a year after the accident. He currently has benefits through his subsequent employment.
Wawanesa sent Mr. Peel for examination on January 22, 2015. At the time of his appointment with Dr. Castiglione, Mr. Peel was reporting headaches, ringing in his ears, neck pain, back pain, confusion, and stiffness. Mr. Peel testified there is a constant, aching pain in his neck, which currently bothers him. His back has not improved since the accident. It continues to bother him when he sleeps. Mr. Peel continues to suffer from ringing in his ears. He is not presently taking any medication.
Mr. Peel also has an ongoing problem with headaches. He experiences a sharp, stabbing pain. He also has ongoing sleep problems since the accident. He finds that he can’t get comfortable, and only has two or three uninterrupted hours of sleep each night. Finally, Mr. Peel has suffered from psychological issues since the accident. He has experienced depression and driving anxiety. He worries about the future, and has become distant from his wife.
Mr. Peel testified that he would like to participate in a pain program, with further physiotherapy and massage. He is hopeful that even with a 25% recovery he would feel much better. He has not experienced any improvement with respect to his neck or back pain since the accident.
Wawnesa claims Mr. Peel has not proved on the balance of probabilities that his injuries fall outside the MIG.
The Arbitrator reviewed the extensive medical reports, and the law. The Arbitrator noted that the MIG is the primary issue at the Hearing, and that Mr. Peel has the onus of proving on a balance of probabilities that the injuries he sustained were not predominantly minor injuries as defined in the Schedule.
Mr. Peel has submitted that he suffered a concussion, neck and back injuries that have become chronic in nature as well as having psychological concerns. His position is that these impairments, either individually or collectively, take him outside of the Minor Injury Guideline.
The Arbitrator found Mr. Peel has not demonstrated on a balance of probabilities that he suffered a concussion. The Arbitrator was not satisfied that Mr. Peel has met the onus of proof placed upon him with respect to psychological issues. Mr. Peel has not demonstrated that any psychological impairment is his predominant impairment. The Arbitrator was not satisfied that Mr. Peel has met the burden of proof as prescribed by the Schedule. With respect to chronic pain, the Arbitrator accepts that Mr. Peel suffers from chronic pain.
Based upon this finding, the two treatment plans in dispute should be considered reasonable and necessary.