March 27, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
16-000393 v Pembridge: Entitlement to medical benefits; Burden of proof met that accident worsened pre-existing condition; applicant entitled to further treatment for pain
Date of Decision: February 21, 2017
Heard Before: Derek Grant
S. L., was hurt in a car accident on January 6, 2015, and sought benefits pursuant to SABS. S. L. made claims for medical and rehabilitation benefits, specifically for chiropractic and physiotherapy services, a pain management program, infusions, an exercise program and the cost of an occupational therapy assessment. Pembridge, denied S. L.’s claims for medical and rehabilitation benefits based on insurer’s examinations and assessments which indicated that the treatment plans were not reasonable and necessary.
Pembridge has paid $18,085.35 in funding for medical and rehabilitation treatment to S. L., of which $14,772.35 was used for physical treatments. Pembridge’s position is that the S. L.’s injuries, including chronic pain, are not a result of the accident, but rather the result of her pre-existing conditions: lumbar back condition and arthritis. Pembridge submits that S. L. has reached the maximum recovery for her accident related injuries and any further treatment of this type will not improve her condition.
The onus is on S. L. to show on a balance of probabilities that her claims are reasonable and necessary.
- Is S. L. entitled to a medical benefit for a chiropractic treatment plan (OCF-18)?
- Is S. L. entitled to a medical benefit for a physiotherapy treatment plan?
- Is S. L. entitled to a medical benefit for a treatment plan (OCF-18) for EEG assessment?
- Is S. L. entitled to a medical benefit for a treatment plan (OCF-18) 6 for a pain management program?
- Is S. L. entitled to a medical benefit for a treatment plan (OCF-18) for “infusions”?
- Is S. L. entitled to a rehabilitation benefit for a treatment plan (OCF-18) for an exercise program?
- Is S. L. entitled to a treatment plan (OCF-18) for the cost of an occupational therapy assessment?
- Is S. L. entitled to interest for the overdue payment of benefits?
The Arbitrator found that:
- S. L. is entitled to all the requested medical and rehabilitation benefits as a result of her chronic pain diagnosis, except for the EEG assessment as there was no evidence of any brain injury.
Evidence and Analysis:
To decide what further treatment S. L. requires, it is necessary to determine the following:
- Did the accident cause the impairment that S. L. suffers?
- If the answer to above is yes, then the question is whether the treatment plans listed are reasonable and necessary for relief from chronic pain.
S. L. has lower back pain, which she claims has become chronic. S. L. has arthritis which was asymptomatic. Following the accident, S. L.’s back pain worsened and Pembridge funded several treatment plans regarding resolving these injuries. Pembridge’s position is that S. L.’s impairment and chronic pain were not caused by the accident but rather from her pre-existing arthritis.
The Arbitrator noted that there are two generally accepted tests in the case law for determining entitlement to benefits – the “but for” test and the “material contribution test” to establish causation. The “but for” test is the default test for causation, but the more appropriate test in this case is “material contribution” because of the claim that the accident triggered pre-existing arthritis and back pain resulting in chronic pain.
“Material” is defined by the Supreme Court of Canada as more than minimal. The Ontario Court of Appeal stated the definition of “materially contributed” as being “a contributing factor is material if it falls outside the de minimis range”.
As this is the case, S. L. must establish that it is more likely than not, that the injuries sustained in the accident were more than a minimal contribution to the impairment she claims she suffers. S. L. claims that the accident was the only intervening event and therefore must have been the cause of her current impairment. Although there was no medical evidence that specifically attributes her chronic pain to the accident; the Arbitrator has medical reports and assessments that confirm S. L. suffers from chronic pain. Further, the family doctor confirmed, the arthritis was asymptomatic prior to the accident. This is also confirmed in an assessment by a chiropractor.
The Arbitrator reviewed the medical evidence, the law, and the testimony and determined that there is sufficient evidence to support a finding that S. L. suffers from chronic pain, and that this chronic pain is a result of the accident as S. L.’s conditions were mostly asymptomatic prior to the accident. On this basis, the requested treatment is reasonable and necessary, except for the EEG assessment. The Applicant is entitled to interest on all applicable claimed benefits.