July 01, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
D'Silva and Personal
Date of Decision: June 12, 2017
Heard Before: Adjudicator Janette Mills
MIG: Applicant is unreliable witness; medical onions concur; pre-existing conditions not worsened
Ms. Rosalina D’Silva was injured in a car accident on October 7, 2012 and sought accident benefits from Personal. When they were unable to resolve their differences Ms. D’Sliva applied to the FSCO for arbitration.
1. Are Ms. D’Silva’s predominantly minor in nature and subject to the MIG?
2. Is Ms. D’Silva entitled to receive medical benefits for treatment provided by Natural Touch Rehab Centre as follows:
a) $2,499.56 for a treatment plan, dated April 2, 2013;
b) $2,872.70 for a treatment plan, dated August 22, 2013; and
c) $2,072.70 for a treatment plan, dated January 16, 2014?
3. Is Ms. D’Silva entitled to payments for the cost of examinations for services provided by Med-Assess in the following amounts:
a) $1,470.33 for an in-home assessment, dated November 27, 2012?
b) $1,979.36 for a psychological assessment, dated August 3, 2013?
4. Is Personal liable to pay a special award because it unreasonably withheld or delayed payments to Ms. D’Silva?
5. Is Ms. D’Silva entitled to interest for the overdue payment of benefits?
1. Ms. D’Silva’s impairments are predominantly minor in nature and subject to the MIG.
2. Ms. D’Silva is not entitled to receive medical benefits for treatment provided by Natural Touch Rehab Centre.
3. Ms. D’Silva is not entitled to payments for the cost of examinations for services provided by Med-Assess.
4. Personal is not liable to pay a special award because it unreasonably withheld or delayed payments to Ms. D’Silva.
5. Ms. D’Silva is not entitled to interest for the overdue payment of benefits.
Ms. D’Silva was 47 years old when the car she was a passenger in was T-boned at an intersection. She was in the rear passenger seat wearing a seat belt. The car was stationary and deemed a write-off. She was unemployed and living with her sister and her niece.
Personal submits that Ms. D’Silva sustained soft tissue injuries and for this reason comes within the MIG. There is nothing unusual about her injuries, and no pre-existing injury or psychological condition that warrants removing her from that designation. Ms. D’Silva has received all benefits owing to her under the MIG, and Personal is not required to pay Ms. D’Silva any additional benefits.
Ms. D’Silva submits that she has pre-existing conditions that should have been considered when determining whether or not she falls within the MIG. These pre-existing conditions make it impossible for her to recover from the injuries sustained in the accident within the timelines and treatment guide as anticipated by the MIG. Further, she suffers from chronic pain and has psychological issues that should remove her from the MIG.
Ms. D’Silva testified that the impact caused the right side of her head and right shoulder to hit the passenger car window. She testified that her left hand hit the car seat/console area and her glasses fell off. The police arrived and an ambulance was called. She could not breathe properly and was crying with pain when the paramedics tried to remove her from the vehicle. She was taken to Hospital in Toronto, where she was treated. X-rays revealed that she had sustained bruising to her ribs, but nothing was broken. She was discharged after approximately an hour and prescribed Tylenol #3 for pain.
Ms. D’Silva was experiencing nightmares and pain after the accident. She testified that she became depressed and was crying a lot. She began getting headaches, shoulder pain, rib pain and hand pain. As a result, her niece’s friend referred her to Natural Touch Rehab Centre, and three days after the accident, she went for an assessment. She met with two chiropractors, who advised that she required therapy. She subsequently attended twice each week for approximately one and a half years, until her funds ran out.
Ms. D’Silva testified that prior to the accident, she had injured her left wrist in a fall, and has a metal plate in that wrist. She also fractured her left foot when she fell down stairs, and had fractured her left hip in a previous car accident. She testified that she cannot sit properly on her left hip and cannot use her left wrist well. These injuries occurred between 1980-2002.
At the time of the accident, Ms. D’Silva had been offered a job working for a friend in a soon to be start-up company. She was to do clerical work for that company. She anticipated starting work at the beginning of October 2012. However, due to the pain she was experiencing from the accident, she was unable to work.
Ms. D’Silva testified that she had tried to work on two occasions since the accident, and on both occasions, she could not cope with the physical demands of the job due to pain in her hand and the stress to her back and ribs. Her most recent attempt to return to work was in 2015. She is currently receiving social assistance.
On cross-examination, Ms. D’Silva testified that she had not worked for four-and-a-half years prior to the accident nor had she had any medical treatment of any sort in the year prior to the accident. Immediately following the accident, she had pain to her ribs. Her head and back pain manifested themselves the next day. Ms. D’Silva testified that, contrary to the hospital report, she lost consciousness, and did not know why it wasn’t recorded in her medical records.
Ms. D’Silva testified that she sees her family doctor twice each month, and described her current symptoms as back pain, pain to the right side of her head, shoulder pain, left hip pain and left wrist pain. Her headaches are intermittent and she still gets nightmares. Her sleep is impaired, she is unable to focus, and has anxiety. She currently takes medication for her pain and anxiety. Ms. D’Silva was taking over-the-counter medication for her pre-accident pain. She testified that she had told her doctor about her on-going pre-accident pain. However, the OHIP records indicate that she had not seen her doctor between 2008 and 2014.
Ms. D’Silva testified that the treatment she was receiving at Natural Touch Rehab Centre was helping her and that she was improving and beginning to feel good. However, she was notified by Personal in a letter, dated October 10, 2013, that she had exhausted funds available to her under the MIG. Ms. D’Silva testified that she continued with treatment until January 2014. She stopped treatment as she could no longer afford to pay. Since that time, her condition has deteriorated. Shortly after the accident, Ms. D’Silva’s ability to do household chores and to care for herself was limited. A friend of her sisters would bring food in to the home for her, her sister and her niece. Currently, she manages better but still cannot bend or twist properly, and going to the washroom remains difficult.
As a result of the two treatment plans submitted, Personal sent her to see a psychologist and to a pain specialist on two occasions. According to Ms. D’Silva, she had discussed her pre-existing injuries with both the psychologist and pain specialist. However, she testified that these discussions were not reflected accurately in either of their respective reports. Ms. D’Silva also testified that her chiropractor had not accurately reflected her injuries in the two OCF-3s he completed.
Her Chiropractor testified that Ms. D’Silva first attended at Natural Touch Rehab Centre three days after her accident. His records indicated that Ms. D’Silva reported pre-existing injuries as broken leg, left arm plates and a fractured pelvis. Ms. D’Silva did not report loss of consciousness during the accident nor did she report injuries to her left forearm. Natural Touch Rehab Centre submitted an OCF-23 and an OCF-3 on October 23, 2012. The OCF-3 indicated that Ms. D’Silva had difficulties with the activities of everyday life and housekeeping. An in-home assessment was done by Med-Assess on November 27, 2013 and was refused by Personal. Med-Assess is currently owed $1,620.33 for that assessment.
Another OCF-3 was done on November 28, 2012, and a treatment plan was submitted on January 15, 2013. On January 2, 2013, an OCF-24 was submitted, discharging Ms. D’Silva from the MIG, with a suggestion to continue treatment and concluded that Ms. D’Silva was seventy percent improved. Several more treatment plas were submitted and Ms. D’Silva continued to have treatment up until January 31, 2014, when she no longer had funds to pay. Natural Touch Rehab Centre is currently owed $5,360.66.
In a progress report, dated January 16, 2014, her other chiropractor reported Ms. D’Silva had improved ninety-five percent and that there were no new complaints. He testified that at the time the OCF-24 was completed on January 2, 2013, discharging her under the MIG, there was not sufficient evidence to put her outside of the MIG. He did not refer her to see other specialists for chronic pain; given that she was in the MIG, he felt it would be futile.
An Orthopedic Surgeon testified that he met Ms. D’Silva on two occasions. First, in March 2013, when he assessed her for a potential non-earner benefit claim, and in June 2013, when he assessed her for the MIG. He has no independent recollection of their meetings. On each occasion, he would have spent approximately 30 to 45 minutes with her. He was aware of Ms. D’Silva’s pre-existing injuries, and he had recorded them as a left forearm fracture in 1998 and a pelvic fracture in 1980. She reported no ongoing problems with either. When they met, Ms. D’Silva was complaining of chest wall pain. He examined her by observing her walk, sit, move her joints and with manual/hands on examination. He measured her range of motion. She demonstrated no significant tenderness along her spine, but was still tender in the anterior chest wall. He diagnosed her as suffering from a chest wall contusion. He felt her range of motion decreases had more to do with age than injury. Chest wall contusions can take anywhere from 3 to 12 months to resolve. They rarely require treatment. However, short term chiropractic or physio can help. He observed nothing out of the ordinary.
On the second occasion they met, it was for a shorter period. The request was for additional passive treatment. Ms. D’Silva confirmed her continuing symptoms regarding chest wall pain. In his view, additional treatment was inappropriate and he felt her injuries fell within the MIG. In addition, there was no pre-existing medical condition that would warrant removing her from the MIG. He had no recollection of her losing her balance during the testing, but did note it in the report. He had no concern for her to continue with the assessment.
The Psychologist testified that he met with Ms. D’Silva on November 14, 2013, and conducted a one-on-one interview. His questions were routine questions directed at issues such as sadness, emotional distress and how she was feeling. The questions he posed would not have been limited to how she was feeling on that day only. He described Ms. D’Silva as friendly and cooperative, and he felt they had a good rapport. Ms. D’Silva reported that she was experiencing intermittent pain in her left ribs (which had become worse due to a cough), headaches, anxiety, dizziness, and sleep disturbance (again due to her cough). She also expressed concern that she was not working and had not worked for four-and-a-half years prior to her accident. The two psychological tests results suggested that Ms. D’Silva did not meet the criteria for any diagnosis, and he did not feel that a further psychological assessment was warranted.
Personal’s adjuster said the first Explanation of Benefits (“EOB”) letter sent was on October 23, 2012, which informed Ms. D’Silva that she was in the MIG based on the OCF-23 and the OCF-3 from Natural Touch Rehab Centre. Ms. D’Silva was approved for $3,500.00 of treatment, as per the MIG. In addition, she was incorrectly paid $45.00 for an ambulance fee and monies for her glasses.
Ms. D’Silva has the burden of proof of establishing entitlement to the appropriate levels of benefits. Accordingly, Ms. D’Silva must prove on a balance of probabilities that she is entitled to the denied treatment plans in dispute and that she is not subject to the MIG limit prescribed the Schedule.
The Arbitrator reviewed all of the evidence and determined that there is no compelling evidence that Ms. D’Silva has a pre-existing condition that would prevent her from achieving maximal recovery from the minor injury if subject to the MIG. The Arbitrator found Ms. D’Silva to be a poor historian. The Arbitrator did not accept that all of the healthcare professionals that she came into contact with, including her treating chiropractor, had either intentionally or inadvertently misrepresented or misreported her injuries, as she testified. On this basis, the Arbitrator found Ms. D’Silva’s evidence to be unreliable.
The impact that her pre-existing injuries had on her life both before and after the accident is unclear. Ms. D’Silva did not provide compelling evidence that her pre-existing conditions should remove her from the MIG.
Ms. D’Silva submits that she has many accident-related complaints, such as headaches, psychological impairments, sleeplessness and chronic pain, however, all treating physicians have diagnosed her with predominantly minor injuries. The Arbitrator agreed with Personal’s position that there is no persuasive evidence that Ms. D’Silva suffers from a psychological impairment.
The Arbitrator agrees with Personal that the evidence supports the position that any overpayment was an error, and contrary to Ms. D’Silva’s submission, the overpayment was not “far in excess” of the MIG limit, but was $45.00 for an ambulance fee and monies for her glasses.