September 11, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
PE v The Dominion of Canada General Insurance Company LAT 16-003460
Date of Decision: July 5, 2017
Heard Before: Adjudicator Christopher A. Ferguson
ETITLEMENT TO TREATMENT: MVA caused or materially contributed to the injuries for which insured is seeking medical benefits in this appeal; medical issues addressed by both disputed treatment plans were caused by or arose from a material contribution by the 2013 MVA
PE was in a car accident on June 7, 2013 and sought benefits from Dominion pursuant to the SABs. When the issues in dispute could not be resolved PE applied to the LAT. PE was involved in a previous motor vehicle accident (MVA) on June 13, 2012, and was treated for cervical, thoracic and lumbar spinal strain and a mild C5 vertical compression fracture.
- PE seeks payment of two treatment plans associated with chronic pain syndrome:
- A chronic pain management program to stabilize symptoms and patient functionality.
- Lidocaine injections for pain relief.
- Dominion seeks a cost award under s.19 of the LAT Rules on the basis of PE’s failure to produce certain documents as ordered by the Tribunal.
- The Arbitrator found in favour of PE.
Dominion submits that this application should be dismissed because PE failed to produce certain documents that the Tribunal’s Order of January 23, 2017 required him to produce. The Arbitrator did not dismiss PE’s claim as requested by Dominion because there is no authority under Rule 9 of the Licence Appeal Tribunal Rules of Practice and Procedure, Version 1 (April 1, 2016) (the “Rules”) to dismiss an application for failing to comply with the Tribunal’s disclosure rules.
The Arbitrator noted that he would determined whether PE’s impairments addressed by the disputed treatment plans caused by the accident of June 7, 2013 or were they caused by a previous accident in 2012?
The injuries sustained in the 2013 MVA were similar in that they affected the neck and included whiplash disorder. PE asserts that the 2013 MVA caused or materially contributed to the injuries for which he is seeking medical benefits in this appeal.
Dominion asserts that the medical issues addressed in the disputed treatment plans arose from the 2012 MVA, and not the 2013 MVA. Dominion seeks to deny PE’s claim on its contention that the 2013 MVA neither caused nor made a material contribution to the medical issues addressed in the disputed treatment plans.
Upon review of the evidence the Arbitrator found that the medical issues addressed by both disputed treatment plans were caused by or arose from a material contribution by the 2013 MVA. Both parties rely on medical evidence to support their contentions. After reviewing the evidence, the Arbitrator preferred PE’s medical evidence finding it more compelling and convincing than any of the evidence adduced by Dominion on the issue of causation or material contribution, because it addresses the issues clearly and unambiguously.
The Arbitrator noted that Dominion relied on an IE which was not conclusive and does not rebut the claim of material contribution. Dominion raised no issues or concerns with PE’s own expert examination. The Arbitrator noted that the 2012 MVA contributed to PE’s current difficulties is not disputed. However, similarities in symptoms and treatment plans do not lead to any reasonable conclusion that PE’s condition is solely attributable to the 2012 MVA, because Dominion made no persuasive argument that pre-accident chronicity precludes a material contribution by the subject MVA to PE’s current state.
The Arbitrator then considered the individual treatment plans and whether each of the treatment plans is reasonable and necessary. The Arbitrator concluded that based on the balance of probabilities the plan for chronic pain management is reasonable and necessary based on the medical opinions. The Arbitrator also found that balance of probabilities that the disputed treatment plan for lidocaine injections is reasonable and necessary, because the evidence adduced by PE, in particular the chronic pain assessment and recommendations by Dr. S, establish that this treatment plan is reasonable and necessary, and ought to be paid.