February 10, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
N.C. v RBC General Insurance Company – Minor Injury and treatment; MIG guidelines; IRBs; SABs; burden of proof; grammatical errors in submissions
N.C. v RBC General Insurance Company
Date of Decision: December 7, 2016
Heard Before: Adjudicator Chris Sewrattan
N.C. was injured in a car accident on August 10, 2015. He applied for medical and income replacement benefits (IRBs) under the Schedule. RBC denied two claims for medical benefits and adjusted N.C.’s IRB from January 2016 onwards. N.C. appeals to the LAT on these issues.
Issues in Dispute:
- Do N.C.’s injuries fall outside the Minor Injury Guideline?
- Is N.C. entitled to $2,916.86 for passive (chiropractic) treatment recommended in a treatment plan dated January 27, 2016, less the amount of $1,070.44 approved by RBC?
- Is N.C. entitled to $2,701.38 for passive (chiropractic) treatment recommended in a treatment plan dated March 21, 2016?
- What is the amount of N.C.’s income replacement benefit from January 2016 onwards?
- In determining the income replacement benefit from January 2016 onwards, is N.C. entitled to claim a weekly business loss amount?
- Is N.C. entitled to interest on outstanding benefits?
- N.C.’s injuries fall outside the Minor Injury Guideline. He is entitled to the following:
- $2,916.86 for passive (chiropractic) treatment recommended in a treatment plan dated January 27, 2016m, less the amount of $1,070.44 already approved by RBC.
- $2,701.38 for passive (chiropractic) treatment recommended in a treatment plan dated March 21, 2016.
- Interest on the above two treatment plans.
- The amount of N.C.’s weekly income replacement benefit is $280.16 from January 2016 and ongoing.
- N.C. is not entitled to claim a weekly business loss amount for the time period in which he is not operating a business.
N.C. is 38 years old. At the time of the accident, N.C. was self-employed working in construction. He stopped working after the accident. He attempted to resume working from December 7-31, 2015, but was unable to continue. He has stopped operating his business since January 4, 2016.
On August 10, 2015 he was in a car accident in which he T-boned a vehicle exiting a gas station that was turning left. N.C. was taken to hospital by ambulance. On November 19, 2015, N.C. underwent an MRI that revealed a small amount of fluid in the distal radialulnar joint, suggesting carpal tunnel syndrome (CTS). Since then N.C. has undergone neurological testing which concludes that there is “possible crush syndrome” with ulnar neuropathy below the elbow. Further testing has been recommended, including an electromyogram (EMG) and nerve conduction studies. The results of those tests are not before the Tribunal.
N.C. received passive treatment (physical therapy, massage therapy, etc.) in varying degrees as a result of the accident. He initially received passive treatment twice a week however, he reduced this regimen to once per week after treatment was denied by RBC. In total, N.C. has received 27 hours of passive treatment. Medical professionals advise that the 27 hours of passive treatment he has received yielded 10% improvement. In January 2016, a chiropractor, stated that N.C.’s injuries were as follows:
- Possible lateral epicondylitis
- Possible medial epicondylitis
- Right carpel tunnel syndrome
- Sprain and strain of cervical spine
- Sprain and strain of thoracic spine
- Sprain and strain of lumbar spine
- Sprain and strain of right wrist
- Sprain and strain of right forearm
The Arbitrator reviewed the submissions of both parties. N.C. has attended a neurologist since the commencement of the Application. In a report dated September 4, 2016, Dr. Basile concludes that N.C. has some features of post concussive syndrome. Looking specifically at N.C.’s right arm and hand, Dr. Basile concludes that there is possible crush injury with ulnar neuropathy below the elbow. The neurologist recommends further testing, including an EMG and nerve conduction studies. Since the release of this report, RBC has approved an assessment for N.C. beyond the Minor Injury Guideline. RBC provides the following comments on this issue in its written submissions:
Since the commencement of the within proceeding and due to the ongoing need to inquire about the origin of N.C.’s hand/wrist/forearm issues, N.C. has been approved for an assessment beyond the guideline limit. The minor injury issue is therefore be resolved [sic] at this time.
The Arbitrator noted that this is a poor occasion for a grammatical error. RBC provided no additional information that would clarify its position.
After reviewing the medical evidence the Arbitrator was convinced that N.C. is entitled to treatment beyond the Minor Injury Guideline.
Approval of the treatment plans turns on whether they are reasonable and necessary. RBC submits that the Tribunal should approach the question as whether each treatment plan could be considered reasonable and necessary based on the information that was available to the insurer at the time the treatment plans were submitted. If that approach is taken, RBC submits, the treatment plans were properly denied. N.C. does not provide submissions directly on this issue; instead, he couches his submissions in an assertion that his impairment falls outside the Guideline, and that RBC is unreasonable to have denied treatment.
The Arbitrator disagreed with RBC in method and result. When an appeal is brought to the Tribunal and the issue is the approval of a treatment plan, the test is whether the treatment plan is reasonable and necessary considering the evidentiary record. Looking at the evidence presented to the Tribunal, the Arbitrator was satisfied on a balance of probabilities that each of the two treatment plans is reasonable and necessary.
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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.