May 30, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Ganal and Coseco/HB Group FSCO A14-010070
MIG: applicant unreliable; medical evidence does not support claim; applicant has no lay witnesses confirming his complaints; treatments capped at $3500.
Date of Decision Date: May 12, 2017
Heard Before: Adjudicator Rosemary Muzzi
Angel Ganal was injured in a car accident on October 2, 2013. He applied for and received some SABs Schedule, but when Coseco determined that Mr. Ganal’s injuries fell within the Minor Injury Guideline they declined payment of additional medical benefits beyond $3500.
- Is Mr. Ganal entitled to a medical benefit of $3173.26 for a chiropractic and massage treatment plan?
- Is Mr. Ganal entitled to a medical benefit of $2830.26 for a mental health therapy treatment plan?
- Is Mr. Ganal entitled to $2486 for the cost of an orthopedic assessment?
- Is Mr. Ganal entitled to a special award?
- Is Mr. Ganal entitled to interest on any amounts outstanding?
- Are the parties entitled to their expenses of the arbitration?
- Mr. Ganal is not entitled to a medical benefit of $3173.26 for a chiropractic and massage treatment plan.
- Mr. Ganal is not entitled to a medical benefit of $2830.26 for a mental health therapy treatment plan.
- Mr. Ganal is not entitled to $2486 for the cost of an orthopedic assessment.
- Mr. Ganal is not entitled to a special award.
- Mr. Ganal is not entitled to interest as no amounts are outstanding.
- Coseco is entitled to its reasonable expenses of the arbitration.
EVIDENCE AND ANALYSIS:
Coseco paid Mr. Ganal the $3500 limit indicated in the MIG. Mr. Ganal seeks treatment and assessment expenses beyond the MIG limit, therefore, Mr. Ganal must prove his injuries are not predominantly minor injuries.
The Minor Injury Guideline (MIG) Test
The Schedule provides a maximum of $3500 towards medical and rehabilitation expenses, including assessments, if they sustain an injury that is predominantly a minor injury. MIGs are defined clearly.
The questions to answer are:
(i) Did Mr. Ganal sustain anything other than a minor injury in the accident?
(ii) Even if he did, was his injury predominantly a minor injury?
Mr. Ganal argues that he is suffering from a multi-dimensional injury that encompasses several disorders including chronic pain, post-traumatic stress, adjustment disorder, anxiety, depression, driving phobia, headaches, radiculopathy, central stenosis and foraminal narrowing. Because his injuries are multi-dimensional and because he has symptoms of post-traumatic stress and adjustment disorder, they cannot be minor injuries within the MIG.
Coseco argues that it is not credible that Mr. Ganal suffers the chronic pain and psychological conditions he alleges because (i) there are limited objective signs to explain his pain; and, (ii) his testimony in respect of his conditions cannot be believed because he is not a reliable historian.
The Arbitrator assessed Ms. Ganal’s credibility by comparing the documented complaints of chronic pain, anxiety and psychological issues with the medical evidence and the evidence of his function. There is very little evidence of disability. There may be pain but the evidence of the pain is not persuasive. The Arbitrator found that Mr. Ganal is not a reliable historian because of the manner in which he answered certain questions. When asked whether something was possible he answered, “I don’t remember”. He repeated the same symptoms over and over. In addition, he did not call a single lay witness to corroborate his limited function at home, at work and in his relationships.
On reviewing the medical evidence tha Arbitrator found the preponderance of the evidence suggests that Mr. Ganal exaggerated the severity and chronicity of the pain in general. He made regular pain complaints to many of the medical assessors who opined on his case. He also testified to persistent pain. Yet there is other evidence that the pain had been resolving with treatment. Most significantly, Mr. Ganal’s reports serious functional limitations but the preponderance of the evidence shows that his function was only minimally limited by pain.
There are no physical injuries that take Mr. Ganal out of the MIG. Given his exaggerated reports about physical limitation which are not supported by his oral testimony, the Arbitrator was not satisfied that he has developed a chronic pain condition that is serious and debilitating and separate and apart from the minor injuries he suffered in the accident. The preponderance of the evidence also indicates that any psychological problems experienced by Mr. Ganal are clinically insignificant and more likely than not clinically associated sequelae of his minor injuries.