November 09, 2013, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Before: Arbitrator Edward Lee
Date of Decision: August 12, 2013
Channock Shmuel was injured in a Motor Vehicle accident Nov 12, 2009. He applied for SABs from Perth. Specifically he applied for medical benefit for 29 treatment plans, attendant care benefits, housekeeping and home maintenance, and four examinations. Perth denied some of the benefits claimed.
Mr. Schmuel applied for arbitration. He testified that he was in severe pain due to the accident. This pain impacted his posture and sleep, and kept him from performing housekeeping duties. He also claimed he requires attendant care and extensive medical and rehabilitative treatment. Even three years post-accident he remains in constant pain.
The evidence provided at the hearing brought into question Mr. Schmuel’s credibility. He provided little to no medical evidence to substantiate his pain complaints. His sole medical witness, Dr. JS, chiropractor, concluded that Mr. Shmuel had suffered soft tissue injuries. Mr. Shmuel was not credible as he minimized and omitted details of many pre-accident health problems. He was on ODSP prior to the accident and for CPP in 2010 due to a head injury. Mr. Shmuel was dishonest with his assessors from whom he concealed his previous medical problems. There were also serious inconsistencies and contradictions with his housekeeping and attendant care claims.
Perth’s medical witness Dr. AG, chiropractor concluded that Mr. Shmuel had suffered uncomplicated soft tissue injuries with no evidence of neuromuscular pathology. He concluded that Mr. Shmuel exaggerated his symptoms.
Dr. S, chiropractor, was called by Mr. Shmuel. Dr. S had completed a Chiropractic Functional Med-legal Examination. It did not suggest any functional or biomechanical basis for the pain experienced by Mr. Shmuel. Dr. S admitted it was difficult to determine any causal relationship between the accident and the injuries. Upon cross examination it was clear that Dr. S had not been informed of Mr. Shmuel’s pre-accident health and medical problems including his ODSB and CPP. Dr. S’s objectivity and methodology was also called into question by the Arbitrator.
The Arbitrator then examined the 29 treatment plans submitted to Perth. They had been created and allegedly submitted by one rehab clinic. All treatments took place between Nov. 13, 2009 and Oct. 7, 2010. They were signed by a variety of medical professionals none of whom attended to testify. Only the office administrator came before the tribunal. She had no personal knowledge of the case. She explained that only the first of 29 treatment plans created in 10 months was initiated by a doctor. Subsequent plans were generated by office assistance with electronic signatures being attached. Two identical spreadsheets detailing identical invoices were submitted to the Arbitrator with differing totals owing.
Mr. Shmuel attended treatment at his leisure with no appointment required, and he was free to seek which treatment he wanted. There was no legible and consistent record of the treatments performed, and no record of intended goals, trajectory or efficacy. There was no indication of how long Mr. Shmuel stayed for each treatment.
In short, the Arbitrator indicated it is up to the applicant (Mr. Shmuel) to prove the treatments were reasonable and necessary. Treatment goals must be identified and met to a reasonable degree, and overall costs of achieving the goals must be provided and justified. No medical evidence was provided showing goals had been identified or met, nor was there any evidence the overall cost was reasonable. It was impossible to even determine what treatment had been received by Mr. Shmuel in his over 100 visits to the clinic.
Perth insurance confirmed it had approved two of the treatment plans. Four more plans were not addressed or replied to by Perth. The Arbitrator deemed they were approved by the law and were thus payable by Perth.
The Arbitrator deemed that as there was no evidence presented for psychological pre-screening and assessment, the claims were not proven, and were disallowed. Given findings on Mr Shmuel’s credibility, the claims for attendant care assessment were deemed not reasonable or necessary. A claim for assistive devices was disallowed on the basis there was inadequate evidence provided for the basis of their need. The housekeeping and attendant care services Mr. Shmuel claimed were inconsistent, and based on the numerous problems with credibility of the testimony and evidence before him the Arbitrator disallowed the claim.