March 21, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Jedeon and Aviva
Date of Decision: January 11, 2018
Heard Before: Adjudicator Lynda Tanaka
MEDICAL BENEFITS and MIG: Applicant's pre-existing medical conditions are worsened by car accident; applicant makes case treatments are reasonable and necessary; adjudicator removes her from the MIG; IE fails to consider several medical facts and conditions of employment, and lacks pertinent information from insurer
Ms. Mahassen Jedeon in the front seat passenger of a van that was “t-boned” during a left turn when an oncoming car ran a red light, striking her vehicle on the passenger side. She was hurt in the car accident and sought accident benefits from Aviva, however, when the parties were unable to resolve their disputes through mediation she applied to FSCO.
- Is Ms. Jedeon entitled to receive medical benefits as follows:
- $2,540.80 for chiropractic and massage treatment submitted on August 5, 2014; and
- Did Ms. Jedeon sustain an impairment within the meaning of the MIG and Schedule as a result of the accident?
- Is Ms. Jedeon entitled to interest for the overdue payment of benefits?
- Ms. Jedeon is entitled to receive medical benefits as follows: $2,540.80 for chiropractic and massage treatment.
- Ms. Jedeon did sustain an impairment within the meaning of the MIG.
- Ms. Jedeon is entitled to interest on overdue payment of benefits.
Ms. Jedeon, 53, felt pain on her right side from her neck down to her hip and particularly in her shoulder following the accident. The paramedics helped her get out of the car, checked her out and released her. She saw her family doctor three days after the accident where she reported that she had headaches and right shoulder pain as a result of the accident. Her family doctor prescribed chiropractic treatment and massage. Before the accident she worked full-time and looked after her husband, three children and her elderly father. She did the laundry, cleaning, cooking, and caring for the children and various household chores. She did not do the shopping as she had difficulty with heavy bags.
Ms. Jedeon was working at a children’s play party venue at the time of the accident. Her work was physical and included climbing ladders, cleaning and wearing costumes. Following the accident she went back to work but with fewer hours and modified duties. Pain prevented her from working a full shift for the first week and she returned on light duties until she was promoted to management. She testified that her strength is not as it was before because of the back and neck pain.
The medical evidence shows Ms. Jedeon had a tremor in her right (dominant) hand which she noticed 5 or 6 years ago and has attended a specialist for, and a long documented history of osteoarthritis in her spine as well as osteoporosis. Her doctor’s clinical notes for January 23, 2014 indicatedMs. Jedeon is complained of mid-back pain to her doctor that required treatment. She has had osteoarthritis for 10 years and testified that, if it is painful, she takes painkillers and does physiotherapy. She was involved in another car accident in 1998, a rear end collision, suffering back pain which did not go away. Her x-rays in 1998 revealed the arthritis in her upper back and lower back.
The OCF-18 in dispute in Issue) was submitted by chiropractor Dr. LZ in August 2014 within two weeks of the accident. It stated that Ms. Jedeon’s injuries do not fall within the MIG and identified the injuries in Part 6 including jaw and neck sprain and strain, and sprains, dislocation and pain in her back, shoulders, elbows, wrist and hand, as well as nonorganic sleep disorders and phobic anxiety disorders. In Part 7 Dr. LZ provided the details of a condition that could affect Ms. Jedeon’s response to treatment for the injuries identified, including the significantly worsened tremor and noting the degenerative spinal condition and reduced bone density.
The OCF-3 Disability Certificate dated September 9, 2014 was provided to Aviva, indicating that Ms. Jedeon had returned to work because “she loses benefits and income” and confirming what was included in the OCF-18, that “work aggravates pain.” It also noted that Ms. Jedeon suffered a substantial inability to engage in caregiving activities and a substantial inability to perform the housekeeping and home maintenance services she normally performed before the accident.
Ms. Jedeon continues to have neck, right shoulder pain and back pain and her hand shook a lot at the hearing. The pain that she suffered prior to the accident has increased since the accident and lasts longer. She testified that she has seen a neurologist concerning the hand tremor but the neurologist was unable to give a diagnosis. She recalls that he told her it could be something in her spine. A different specialist opined that her tremor might be due to carpal tunnel syndrome or Parkinson’s disease. She cannot apply make-up using that hand or hold containers of liquids without risk of spilling. She testified that she wakes up in the middle of the night with pain in her back.
In response to a question under cross-examination as to whether or not she mentioned her sleep difficulties and anxiety to the independent assessor she testified that she felt she should have had psychotherapy to cope with her sleep difficulties and anxiety. She wants to take more physical therapy because she did get pain relief from it. She cannot stand for more than 10 to 15 minutes before she feels pain. She stopped attending chiropractic treatment when the chiropractor moved away, noting it did help. She has sprivate health care coverage. He family doctor has ordered further x-rays and MRI to investigate her pain.
Dr. John Brooks, B.A., M.Ed., M.D. C.C.F.P., is a family physician with over 30 years of experience as a clinician who was called to testify as an expert witness for Ms. Jedeon in the diagnosis of chronic pain syndrome and arthritis. On evaluating all of the medical evidence he noted that patients with arthritis are slower to recover from injuries. His opinion was that Ms. Jedeon had mainly soft tissue injuries that were made worse by her pre-existing conditions. In addition, there may be a component of central sensitization where a patient will continue to feel pain because the body has become programed to feel pain after a period of time, regardless of how much tissue recovery has been accomplished. In his opinion, the pain she is suffering is chronic pain and secondary to her motor vehicle accident injuries. In his experience, muscles and joints interact and pain or injury in one can aggravate the other. In his view, the injuries are not minor and do not fall within the MIG. Given what he saw on the x-rays and Ms. Jedeon’s score in the osteoporosis tests, he would expect that she has had pain for a long time that is legitimately affecting her daily activities. In his opinion, the treatment plan had as its goal pain relief and it was comprehensive in that it contained definitive references to Ms. Jedeon’s previous history. He determined that the treatment plan was reasonable and necessary.
His diagnosis was that she suffered from chronic pain syndrome (“Syndrome”) with a nervous system programed to suffer pain more. When he was told she had not taken any more treatment recently, he indicated that he was not sure she really understood what his team was proposing, that she probably needs psychological treatment. The Syndrome does not fall within the MIG.
Ms. Jedeon was assessed by Dr. Bob Karabatsos, M.D. RCPSC, at the request of Aviva on September 16, 2014, about seven weeks after the accident, and is an expert qualified in orthopaedics. At the assessment he asked Ms. Jedeon where she had pain and she pointed to her trapezius muscle that runs from the neck to the shoulder. She told him her pain radiated front and back and that she also had headaches and jaw pain. He was told about her old back pain from the previous accident and that the pain now was not worse but different. His opinion was that she was pointing to the muscle and not the joint as the point of pain so arthritis would not make it more difficult for her to recover. He did note in his report that she had “past medical history significant for osteoporosis and arthritis”. He also noted the tremor in her right hand and that she has had the tremor for many years. He does not appear to have focused on the notation in the OCF-18 that the tremor had been aggravated by the accident but he does note that the tremors “were largely pre-existing” (emphasis added). He indicated in his evidence that the tremors would not be an orthopaedic issue but rather a neurological one. His view was that passive therapies would not alter her pain and that these therapies are effective in the acute stage but not at the stage at which he examined her.
He concluded that she “may have sustained some sprain/strain/type injuries” and that she had no impairment due to the accident at the assessment, and that she does suffer from a predominantly minor injury without a pre-existing medical condition that will prevent her from achieving maximum medical recovery if subject to the minor injury cap of $3,500.00.
Aviva moved to have the issue of the MIG removed from the Arbitration as there was no jurisdiction for FSCO to rule on it. The Adjudicator reviewed the evidence and the law and dismissed that motion. The Adjudicator noted that Aviva’s motion is based on a misinterpretation of the Schedule and in particular of those sections dealing with dispute resolution.
The Adjudicator agreed with with Ms. Jedeon’s submission that the question of whether or not the injuries fall within the MIG is within the arbitrator’s jurisdiction by necessary implication, with or without a disputed benefit or treatment plan and that the case law supports that conclusion. Even if there was no treatment plan in dispute, there would still be jurisdiction to deal with Issue 2.
The Adjudicator found that Aviva’s refusals of the treatment plan benefit are not caught by section 38(6) of the Schedule. The refusals by Aviva of the treatment plan were clear and unequivocal in directing Ms. Jedeon to the mediation and arbitration process that she has followed.
The Adjudicator reviewed the totality of the medical evidence and expert testimony and did not accept the evidence of Dr. Karabatsos in this matter. He specializes in lower extremities reconstruction and gave too little weight and regard to the fact that at the time of her assessment she was in the midst of regular treatment that provided relief from her symptoms and under prescription medication that would, if it were effective, give her relief from inflammation and pain allowing her to move more easily. He appears to have ignored her pain complaints, that she was taking medication that would impact both her movement and her pain level, and that her functioning was compromised, i.e. he omitted to include in his report that she was on modified work duties. He testified that in his practice his patients post-surgery have a follow-up appointment with him and a physiotherapist who instructs them on exercises to do at home and “they all get better”, an outcome many accident victims only dream of. He also lacked the full documentary record. He also failed to flag areas that might well be investigated by someone with the expertise to do so before Aviva drew a conclusion as to the nature of her injuries or her ability to recover under the MIG course of treatment.
On the basis of the evidence of Dr. Brooks and Ms. Jedeon, the Adjudicator found that the treatment plan is reasonable and necessary and should be approved. He also found that Ms. Jedeon has met the burden of proof as to the nature of her injuries, flowing as they do both from her pre-existing conditions as well as from the injuries suffered in the accident of July 28, 2014.
Therefore, Ms. Jedeon did not sustain an impairment within the meaning of the MIG as a result of the accident, also on the ground that her injuries do not fall within the definition of minor injury.