October 22, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
PJ and Continental - 16-004272 v Continental Casualty Insurance Company, 2017 CanLII 63661 (ON LAT)
Date of Decision: August 24, 2017
Heard Before: Adjudicator Nicole Treksler
MIG and CHRONIC PAIN: pre-existing medical conditions and chronic pain remove applicant from MIG restrictions
PJ was injured in car accident on June 21, 2015 and sought for medical and rehabilitation benefits pursuant to the SABs. Continental denied her claims on the basis that the position that PJ’s injuries are minor and she has exhausted the treatment cap of $3,500 under the MIG.
PJ’s Disability Certificate dated September 1, 2015 listed the following injuries resulting from the accident: sprain and strain of cervical spine; sprain and strain of thoracic spine; sprain and strain of lumbar spine; headaches, and sprain and strain involving (fibular) (tibial) collateral ligament of knee. A chronic pain report dated December 5, 2016 and concluded that PJ’s back pain was chronic, and she suffered from aggravated bilateral knee pain − both likely caused by the accident.
PJ submits that her injuries are not minor injuries as defined in subsection 3(1) of the Schedule and fall outside of the MIG due to her pre- existing conditions and chronic pain as a result of the accident. PJ also asserts that her claims for medical and rehabilitation benefits are reasonable and necessary.
The onus is on PJ to show on a balance of probabilities that her injuries are not minor and that the treatment plans are reasonable and necessary.
A procedural issue was dealt with. Continental submits that the treatment plans in dispute were not signed by PJ and/or a regulated health professional as required by section 38(3) of the Schedule, however it acknowledges that it did not deny the treatment plans on the basis that they were not signed.
The Adjudicator determined that Continental cannot now rely on section 38(3) of the Schedule to request that the claims should be dismissed. Continental should have enforced section 38(3) at the time the treatment plans were submitted. The treatment plans are admissible as evidence and the matter is not dismissed.
- Do PJ’s injuries fall within the MIG?
- Is PJ entitled to a rehabilitation benefit in the amount $64.07 for a cortisone injection and a medical bracelet as submitted on December 1, 2017 and denied on December 17, 2016?
- Is PJ entitled to a medical benefit in the amount $2,762.00 for multiple regions as submitted on November 10, 2015 and denied on December 21, 2015?
- Is PJ entitled to a medical benefit in the amount $160.00 for massage therapy as submitted on December 7, 2015 and denied on December 21, 2015?
- Is PJ entitled to a medical benefit in the amount $2,260.00 for a chronic pain assessment submitted on October 10, 2016 and denied on November 23, 2016?
- The Adjudicator found that PJ’s injuries cannot be treated under the MIG due to pre- existing injuries and a chronic pain diagnosis, and that the treatment plans are reasonable and necessary, except for the cost of a medical bracelet.
The Adjudicator considered whether PJ’s injuries minor as defined in section 3(1) of the Schedule, reviewing the law and the evidence. The Adjudicator noted that “an insured who does not have minor injuries or whose injuries are minor but has shown compelling medical evidence that there is a pre-existing condition or other conditions that would prevent maximal recovery within the $3,500.00 amount, may access up to $50,000.00 of medical and rehabilitation benefits.”
PJ indicates that her injuries are not minor due to her pre-existing conditions and diagnosis of chronic pain. PJ has an extensive history of pre-existing conditions. PJ submits that she has “pre-existing [….] conditions some of which were exacerbated by the accident, all of which have impacted her ability to recover.” Prior to the accident, PJ had several pre-existing conditions, including, osteoarthritis in both knees; obesity and diabetes; abdominal pain; high blood pressure; and back pain.
PJ submits that she continues to require medical assessments and treatments of her accident related injuries. After the accident, PJ was hospitalized on several occasions for abdominal pain. PJ argues that she required post-accident surgery to repair a ventral hernia not present prior to the accident. She states she continues to suffer from abdominal pain, which continues to draw out her accident recovery.
The Arbitrator agreed with PJ, and in the absence of any persuasive evidence from Continental, the Adjudicator found that PJ’s increase in knee pain and use of cortisone injections, increase in medication intake and abdominal pain, indicate that PJ is not able to recover under the MIG limit. As such, PJ’s pre-existing injuries remove her from the MIG.