May 09, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Patel and TD General
Entitlement to Benefits: MIG; the SABs; Do injuries fall within the MIG?; Procedural issues
Date of Decision: April 10, 2017
Heard Before: Adjudicator Louise Barrington
Mr. Jayeshkumar Patel, 41, was injured on September 10, 2012, while stopped at a red light. His car was suddenly struck from behind and pushed about 10 feet forward. It was a heavy impact with a loud noise. The impact thrust his head backward to hit the headrest part of his seat. The airbags did not deploy, but the car sustained extensive damage and was written off. According to Mr. Patel’s testimony, his wife was taken to hospital, but he seemed fine at the time, and did not feel it was necessary to go to hospital immediately after the accident. The driver of the tow truck attending at the accident scene took him to the Collision Reporting Centre to report the accident. He worked for a day or two but his back started hurting and he decided to see his family doctor on September 12, 2012.
He sought accident benefits from TD but when the parties were unable to resolve their disputes through mediation, and Mr. Patel applied for arbitration at the FSCO.
- Did Mr. Patel sustain an impairment which is primarily a minor injury within the meaning of the Minor Injury Guideline (“MIG”) of the SABS as a result of the accident?
- Is Mr. Patel entitled to receive an expense of $1,752.00 for the cost of a Functional Abilities Evaluation by Dr. JG on September 30, 2014?
- Is Mr. Patel entitled to receive a medical benefit for services by Dr. JG for:
- $2,214.40 for chiropractic treatment, pursuant to an OCF-18, submitted on June 2, 2015;
- $1,075.75 for assistive devices, pursuant to an OCF-18, submitted on July 29, 2015; and
- $1,819.30 for assistive devices submitted on January 5, 2016?
- Is Mr. Patel entitled to payments for the cost of an examination in the amount of $2,000.00 for a Social-Emotional Assessment performed by Dr. JP?
- Is Mr. Patel entitled to a special award?
- Is Mr. Patel entitled to interest for the overdue payment of benefits?
- As a result of the accident, Mr. Patel sustained an impairment which is not primarily a minor injury within the meaning of the MIG of the SABS.
- Mr. Patel is entitled to receive a benefit of $1,752.00 for the cost of a Functional Abilities Evaluation by Dr. JG on September 30, 2014.
- Mr. Patel is entitled to medical benefits of:
- $2,214.40 for a treatment plan proposed by Dr. JG on June 2, 2015; and
- $1,075.75 for assistive devices recommended by Dr. JG on July 29, 2015.
- Mr. Patel is not entitled to $1,819.30 for a treatment plan for assistive devices proposed by Dr. JG on January 5, 2016.
- Mr. Patel’s claim for $2,000.00 for the cost of a Social-Emotional Assessment proposed by Dr. JP is denied.
- The application for a special award is denied.
- Mr. Patel is entitled to interest on the amounts awarded, from the date each benefit amount fell due. The medical benefit of $1,752.00 for the cost of the Functional Abilities Evaluation shall bear interest at the rate of 1% per month, compounded monthly, from the date it became due until the date of this Decision. All other amounts awarded, having become due after December 31, 2014, shall bear interest at the rate of 1% per month, compounded monthly, from the date each became due until March 14, 2016, the date they were mediated. Thereafter, these overdue sums will bear interest at the Courts of Justice Act pre-judgment interest rate of 1.3% per annum until the date of this Decision.
At the start of the Hearing, a number of preliminary issues arose:
- Mr. Patel brought a Motion seeking an Order not to include three addenda reports served by TD one week before the date of the Hearing;
- TD in return sought a Motion that an orthopedic assessment report filed by Mr. Patel had been served late and should also be excluded;
- TD sought a ruling on the number of expert witnesses to be permitted in support of Mr. Patel’s case; and
- Mr. Patel applied for an Order permitting Dr. K, Mr. Patel’s family physician, to testify by videoconference.
- Two specialists, Dr. G and Dr. P, who had filed reports in support of Mr. Patel, had not appeared to testify despite having received a summons to do so. Counsel for TD asked me to disregard their reports, which had already been included in the joint brief submitted by the parties.
After hearing the parties on all preliminary issues, and considering the object of the SABS to encourage expeditious settlement, and that neither party would be unduly prejudiced by the late submissions, the Arbitrator ordered as follows:
- The three Addenda reports filed by TD were admissible;
- The orthopedic assessment report served by Mr. Patel was admissible;
- Mr. Patel having decided to call only his treating family physician to give evidence, there was no issue to resolve regarding the number of expert witnesses;
- Dr. K was examined from his medical office by both Mr. Patel’s and Insurer’s counsel using Skype; certain documents referenced by counsel were sent to him by fax or email in advance by counsel for both parties; and
- The reports of Dr. G and Dr. P would be admitted into evidence, but in weighing their content, the Arbitrator would take into account the fact that TD’s counsel had not had the opportunity to contest them.
EVIDENCE AND ANALYSIS:
Mr. Patel states that his injuries from the accident fall outside the MIG because they have persisted long after one would expect a soft tissue injury to last, and continue to cause him chronic pain and debilitation. He relied on various medical reports, and a Social-Emotional Assessment.
TD’s position is that Mr. Patel’s injuries fall within the definition of a minor injury, and thus his recovery for medical and rehabilitation benefits is limited to $3,500.00. Even if the injuries are outside the MIG, TD submits that Mr. Patel has failed to show evidence to demonstrate on a balance of probabilities that he requires the benefits claimed, nor that TD’s conduct has been such as to warrant a special award.
TD relies on the evidence of a psychologist, and a physiatrist, who both testified at the Hearing of this matter, and of Dr. MN, whose report was filed, but who did not attend the Hearing. TD requests that all of Mr. Patel’s claims be dismissed.
Mr. Patel completed Grade 10 before immigrating to Canada in 1997. He worked at welding jobs on a regular basis up until the time of the accident, and after the accident as well. He lives with his wife and two children. Other than a loss of hearing in one ear, had no pre-existing physical complaints. He was laid off in October 2016. Welding is the only job he has held in his career. It is a very strenuous job, involving climbing inside machinery, overhead reaching, squatting, standing, and lifting up to 50 pounds at a time. Although he returned to work shortly after the accident, and has held several jobs since, at the time of the Hearing, he was not working. At the time of the accident, Mr. Patel was working full time as a welder involved in making a large tunneling machine. He had to go inside the machine, assuming different positions to do the welding.
Following his accident Dr. K gave him pain medication and prescribed physiotherapy and told him to relax for 2 to 4 weeks and see how he felt. The pain was in his back, shoulder and knee. On his next visit the doctor referred him for physiotherapy. On a subsequent visit on October 15, 2012, when he had returned to work at Caterpillar, Dr. K gave Mr. Patel a note telling him to avoid excessive bending and regular duties where he was required to lift up to 50 pounds. He began attending a Rehab Centre for physiotherapy which was helpful, he does exercises at home. He is now unable to afford physiotherapy.
He returned to regular duties in mid-November 2012 but was laid off. He then held two more welding jobs from which he was laid off. He took a holiday, then returned to welding full time again, until he was laid off again. He was working as a welder again until about a month before this hearing. On cross-examination Mr. Patel testified, “I can’t work eight hours now. If I work, the pain is constant; if I don’t work, it stops. But right now, it’s back.” His specific complaints at the time of the Hearing were of the lower back, and his knees, with new pains now in the cervical area and shoulder.
Mr. Patel in his testimony was often confused or vague about the dates of his various jobs, and about which medical practitioners he had visited, their specialisations, and what each recommended. The Arbitrator did not consider this as an attempt at evasion or obfuscation, but as a natural reaction to numerous interviews, questionnaires and physical assessments over a four-year period, some through interpreters, others conducted in a language which he does not fully master. None of the practitioners examining him suggested that he was malingering or exaggerating his troubles. Considering his linguistic limitations and his lack of sophistication, the Arbitrator und him to be a credible witness, although somewhat fuzzy on details.
He has been diagnosed with soft tissue injuries, strain to both knees, pain in lower back, inability to support weight on his knees, inability to bend or twist. His motion is about 50% of normal. In April 2014, Mr. Patel was treated in hospital, and on the following day, Dr. K again observed lower back pain, and anxiety. As time went on and the pain continued without evidence of arthritis, Mr. Patel was prescribed more rest, ice, and medication as well as a back brace. The physicians noted continued anxiety. He was eventually diagnosed with chronic pain, and anxiety.
Counsel for TD pointed out that Mr. Patel’s OCF-1, showing Caterpillar as his employer. The coverage type and policy number columns were blank. The OCF-2 completed by Caterpillar listed Standard Life Policy with Supplementary Medical Rehabilitation or Attendant Care Benefits. No evidence has been led by either party as to any coverage which might have been available to Mr. Patel. In his oral testimony Mr. Patel said, “I don’t know. The benefits were “only for glasses and shoes.””
Counsel for TD presented medical reports finding in November 2014, residual pain in Mr. Patel’s lower back and knees. Two years after the accident the report noted:
Mr. Patel’s injuries are soft tissue related which have an expected physiologic recovery time of 8 to 12 weeks… In the absence of any ongoing objective musculoskeletal impairment attributable to the accident related injuries there would be no clinical indication for the provision of any clinical assessments beyond that afforded by the minor injury guideline.
The physician found that the treatment plan submitted by Dr. JG was not reasonable and necessary, but failed to comment on or explain the fact that injuries which, according to her, would normally recover in 8 to 12 weeks, were still unresolved more than two years after the accident.
Mr. Patel underwent another IE in November 2014 and again in 2016. In addition to the physical symptoms, moderately high symptoms of depression, average levels of anxiety, somatic pain complaints and functional complaints including low levels of pain complaints. Tests conducted in a subsequent examination on August 17, 2015 revealed moderately high depression [78th percentile], high anxiety [92nd percentile], average somatic and pain complaints [53rd and 40th percentiles respectively], and moderately high functional complaints [50th percentile]. Nevertheless, there was no diagnosis of clinically significant mental health symptoms, and in their absence, he found “…from a purely mental health perspective… nothing to suggest to me that Mr. Patel would fall outside of the Minor Injury Guideline.”
A physiatry assessment was conducted on September 1, 2016, when Mr. Patel was working full-time. It concluded that Mr. Patel suffered low back pain, knee pain and neck pain. Noting that there were no x-rays or ultrasound examinations done and that Mr. Patel was not “manifesting as needing surgery or specialized treatment,” The physician opined Mr. Patel showed no evidence of chronic pain syndrome. Given the comments of Mr. Justice Gonthier cited below, the Arbitrator noted that the criteria for a conclusion of chronic pain are quite different from those of the Supreme Court of Canada.
TD argues that Mr. Patel has failed to meet his burden of proof, stating that Mr. Patel had no documented pre-existing condition to remove him from the MIG, and that chronic pain would not necessarily remove him from the MIG limitations. TD argues Mr. Patel failed to provide any evidence on the medical benefits in dispute by not addressing personally any of the disputed treatment plans, and by failing to call any of the authors of the OCF-18 forms to give oral evidence that the treatment plans were reasonable and necessary. TD objects that Mr. Patel did not bring even one specialist to the Hearing and did not ensure the
The Arbitrator examined the evidence and the law. The Arbitrator noted the goal of FSCO’s dispute resolution system is to provide the public with efficient service, without overly long and expensive Hearings. Parties are limited to two experts at a hearing, and are not constrained by rigid evidentiary rules that apply to court procedures. FSCO practice encourages parties to rely on reports rather than viva voce evidence at the Hearing.
TD also argues that Mr. Patel’s failure to provide details of collateral benefits that may have been available to him, and his failure to fill pain prescriptions and to purchase a back brace recommended by his doctor (even though he had access to health plans which would have paid for them) are fatal to his claim. Mr. Patel contends that having unsuccessfully used his best efforts to obtain policy details from the insurance company, he has discharged his duty to provide details of possible coverage. Mr. Patel points out that in none of its denials of treatment did TD mention the absence of collateral benefit details as a reason, nor did it request production formally or make any other attempt to obtain information regarding any existing applicable policies. The Arbitrator noted the TD’s objection to Mr. Patel’s lack of information on collateral benefits was not an issue that TD had raised before the Arbitration. The Arbitrator also noted that Mr. Patel had long been laid off from that job.
The Arbitrator noted that the substantive issue in the hearing is whether, ss a result of the accident, Mr. Patel sustained an impairment which falls within the MIG of the SABS?
The MIG at section provides that a “minor injury” is a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation, including any clinically associated sequelae to such and injury. Section 18(1) provides that a person whose impairment is predominantly a minor injury is entitled to a maximum of $3,500.00 in medical and rehabilitation benefits. Section 3(2) excludes the application of 3(1) if the Insured’s health practitioner determines and provides compelling evidence that the Insured has a pre-existing medical condition documented before the accident that, if subjected to the $3,500.00 limit, will prevent the Insured from achieving maximal medical recovery from the minor injury.
Mr. Patel accepts that he bears the onus of proving on a balance of probabilities that his injuries are not predominantly minor in that a chronic pain condition exists, and argues that the pain he suffers is not included as sequelae under MIG, but is a separate impairment. Mr. Patel argues that the chronic pain he suffers today is a result of the accident, it is sufficient to discharge his burden of proving that his disability falls outside the MIG, and that he is entitled to the benefits he claims.
Although there is no single definition of chronic pain, it has been called “pain without a biological value, lasting longer than the typical healing time, not responsive to treatments based on specific remedies, and of a duration greater than 6 months. Its consequences include psychological distress, job loss, social isolation, depression and anxiety.”
Mr. Justice Gonthier of the Supreme Court of Canada defined chronic pain as pain that:
persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury using current techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real …. pathological changes in the nervous system that result in pain that … may persist well beyond the normal recovery time for the precipitating event.
The Arbitrator was satisfied that Mr. Patel has provided compelling evidence that on a balance of probabilities, he has suffered an impairment which, due to its persistent recurrence in the four years since the accident, is not predominantly a minor injury, and which thus releases him from the constraints of the MIG. Consequently, his maximum entitlement for reasonable and necessary expenses is limited not to $3,500.00, but to $50,000.00.