January 30, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Martinez and Aviva - Entitlement to Medical Benefits; does a conflict of interest exist and did it colour medical assessment; MIG guidelines; MIG benefit limits
Martinez and Aviva
Date of Decision: January 3, 2017
Heard Before: Adjudicator Marcel Mongeon
Mr. Jesus Martinez was hurt in a car accident on March 10, 2014 when he was rear-ended. He self reported to a collision centre and did not seek medical attention for 9 days. He sought accident benefits from Aviva, but when the parties were unable to resolve their disputes through mediation Mr. Martinez applied for arbitration at the FSCO.
The issues in this Hearing are:
- Are Mr. Martinez’s injuries predominantly a “minor injury” as defined in the Minor Injury Guideline?
- Is Mr. Martinez entitled to a medical benefit of $1,300.00 for a treatment plan?
- Is Mr. Martinez entitled to receive the cost of examinations for an orthopaedic assessment and a chronic pain assessment?
- Is Mr. Martinez entitled to a medical benefit of $14,364.72 for a treatment plan for chronic pain?
- Is Mr. Martinez entitled to receive a special award?
- Mr. Martinez’s injuries are predominantly a “minor injury” as defined in the Minor Injury Guideline.
- Mr. Martinez is not entitled to the payment of any further benefits.
EVIDENCE AND ANALYSIS:
Mr. Martinez did not know what to do following his accident and he phoned a friend and client Dr. P for advice. Dr. P told him to call a lawyer. Within 48 hours of the accident, the legal firm recommended by Dr. P was representing Mr. Martinez. They sent a letter to Aviva with an OCF-1. As part 3 of the OCF-1, Mr. Martinez stated, “[a]s a direct result of the accident, I have been experiencing pain and discomfort in my neck, shoulders, back, numbness in neck and head. Since the accident, I have been experiencing episodes of dizziness, anxiety, stress, sleeping disturbances, and nervousness.”
An OCF-3 based on the first post-accident examination of March 19, 2014 was submitted to Aviva. The physiotherapist completing the form indicated in Part 7 that no further examinations, investigations or consultations were contemplated or required. The form also indicated in Part 8 that there were no prior injuries.
Undisputed treatment of $2,200.00 was sought by the physiotherapist on an OCF-23 was authorized by Aviva on March 27, 2014, which also sent an Explanation of Benefits on March 27, 2014 noting that it was dealing with Mr. Martinez’s matter under the Minor Injury Guideline with a limit of $3,500.00 in treatment available.
Mr. Martinez sought additional medical care on April 24, 2014 at Albany Medical Clinic. Mr. Martinez explained his delay in seeking medical care from a family physician because having been in good health, he had not visited a physician in a number of years. When he went to his previous physician, he was told that they had dropped Mr. Martinez from their patient roster. He then was counseled to go to the Albany Medical Clinic, which accepted walk-in patients. The Physician notes that day noted, “Post neck and L low back pain S/P MVA”. The prescription is noted as “continue physio” and two pain-killers. Mr. Martinez was again seen on April 29 to enrol on the clinic roster and ‘report on MVA’.
An OCF-18 (Treatment and Assessment Plan) was submitted by a physiotherapist, and submitted through July 31, 2014. This plan is disputed in this Hearing. Under Part 9 of the form, the goals of additional treatment were identified as pain reduction and increase in strength. In part 4, Ms. Bowen certified – by checking the applicable box – that the impairment suffered by Mr. Martinez was predominantly a minor injury as referred to in the Minor Injury Guideline. Additional explanation by the physiotherapist in the OCF-18 was provided as follows:
[Mr. Martinez] has slightly improved the mobility and strength of his neck and back muscles. We believe he needs further treatments so that he can reduce his pain levels and successfully return to his ADLs [activities of daily living]. Also in his last few weeks of his treatment plan, he was only coming to the clinic once a week. He would need more sessions per week so that his rehabilitation be maximized effectively.
The additional explanation may be ambiguous in suggesting the injuries may have been more extensive than just a minor injury within the Minor Injury Guideline. However, the Arbitrator found the checking off of the applicable box in Part 4 of the form that it was a minor injury should be used to limit the explanation to just that. The plan was denied by Aviva on August 5, 2014, requiring Mr. Martinez to attend an Insurer’s Medical Examination (“IME”). The report of that examination was sent to Mr. Martinez on September 16, 2014. A general practitioner, conducted the examination of Mr. Martinez on August 29, 2014. His report concurred that Mr. Martinez had suffered a minor injury.
On September 3, 2014, Mr. Martinez’s law firm sent him a letter which included a document called a Patient Injuries and Complaints (“PIC”) form, asking Mr. Martinez to follow up with his family physician, give the PIC form to the physician and ask the physician to refer Mr. Martinez for five different types of specialists. On February 6, 2015, Mr. Martinez went to see his family physician. The physician’s note advised:
here b/c his lawyer was asking him to see FD [family doctor] back in March 10, 2014. Asking for referrals to orthopedic surgeon; physiatrist; neurologist; psychiatrist; chronic pain. Says he didn’t follow up b/c he was a busy restaurant owner; just sold his 2 restaurants in December and now he has more time.
… 1. s/p mva March 2014 – low back pain; no red flags; **contrary to the documents he provided from his lawyer patient is not and has not experienced sciatica; physio see instructions 0 0 refills; pt declined medications – saying he doesn’t like to take meds; **X-Ray: LUMBAR SPINE; ** AMC orthopedics.
… if pt needs other items in the lawyers letter addressed – asked him to followup; fu prn [fu as required].
Mr. Martinez was evaluated by several physicians, including firstly by his friend Dr. P. All of the medical evidence was reviewed by the Arbitrator. At the hearing Mr. Martinez withdrew some of the claims for treatment plans, however the cross examination of two physicians was allowed to proceed because some of their work formed the basis of other medical evidence provided by Mr. Martinez. The remaining issues in dispute were the Minor Injury Guideline issue and the claim for a physiotherapy.
The Arbitrator determined that two separate sets of questions would require consideration. Firstly, was there a conflict of interest between Mr. Martinez and one of the initial assessing physicians, Dr. P, for whom Mr. Martinez had worked over several years and was good friends with. If there was a conflict, then the Arbitrator was left to determine whether the conflict coloured the assessment. Secondly, if Mr. Martinez’s impairments were “minor”. If so, is any additional treatment “reasonable and necessary”?
It is not contested that Dr. P and Mr. Martinez are close friends. It was Dr. P whom Mr. Martinez called to find out what to do when he had the accident. Dr. P referred him to the law firm that represented him through this Hearing. The Arbitrator saw nothing wrong in that referral. Things were made more difficult when Dr. P signed an OCF-18, proposing treatment for her friend, Mr. Martinez. This is contrary to the Standards of Professional Conduct.
The conclusion is inescapable: even though Dr. J prepared a subsequent report, there was a conflict of interest because of Dr. P’s relationship with Mr. Martinez. That conflict in turn affects Dr. J’s report.
The Arbitrator then considered what evidence should be accepted, and what weight it should be given, and determined that the reports prepared based on Dr. P’s assessment should be given zero weight. The only report to be considered as evidence was the OCF-23 presented by the original physiotherapist which made clear that Mr. Martinez came within the Minor Injury Guideline.
On this basis, the Arbitrator concluded that Mr. Martinez suffered a Minor Injury and that Mr. Martinez is therefore entitled to benefits within the aggregate of $3,500.00, and that any proposed expenses must be reasonable and necessary. Aviva obtained an opinion which concluded that any further treatment was neither reasonable nor necessary.