17-000208 v The Personal Insurance Company, 2017 CanLII 46353

Jul 13, 2017

Adjudicator: Rebecca Hines

The Applicant was injured in a motor vehicle accident on July 22, 2011. The Respondent denied a claim for a medical benefit on the basis that the Applicant had reached maximum medical recovery and the treatment plan was therefore not reasonable or necessary.

Procedural Issue

The Respondent argued that  the Tribunal should not accept the Applicant’s evidence and submissions as they were not served prior to the deadline provided in the case conference. The Respondent argues that, pursuant to Rule 9.4 of the Rules of Practice and Procedure, the Applicant’s submissions should be excluded.  The adjudicator held that the Applicant’s infraction was minor, and the Respondent has failed to demonstrate how it was prejudiced in the late receipt of the submissions.

Result: The late filing of the Applicant’s submissions and evidence was permitted.

Issue: Is the Applicant entitled to a medical benefit for  physiotherapy?

The Applicant submitted an In-home Occupational Therapy Assessment dated August 12, 2011, which recommended that the Applicant receive ongoing physiotherapy. The Applicant also submitted a Chronic Pain Assessment dated December 14, 2012.  The assessor diagnosed the Applicant with soft tissue injuries and chronic pain syndrome, and found that the motor vehicle accident directly and materially contributed to this diagnosis. The assessment supported ongoing physiotherapy and potentially a chronic pain program should the Applicant’s symptoms not improve.

The Respondent submitted an insurer examination report prepared by a physiatrist dated November 1, 2016, which found that the Applicant has reached maximum medical recovery with respect to her physiological injuries caused by the accident. The assessor found no objective clinical findings of any physical impairment and opined that the Applicant’s soft tissue injuries had healed as it had been five years since the accident.

The Adjudicator found that the Applicant was relying on outdated medical assessments to support her entitlement to the benefit claimed. The Applicant therefore failed to meet  her onus to demonstrate through medical evidence that she has an “ongoing impairment”: the evidence supported that she had an impairment over four years ago but not an “ongoing” impairment.

While the Applicant’s Chronic Pain Assessment was credible, a diagnosis of chronic pain syndrome does not automatically entitle the Applicant to unlimited treatment without adequately demonstrating that she suffers from an “ongoing” impairment. Had the report been more current, it would have been more influential in the adjudicator’s decision.

Result: The Applicant is not entitled to the benefit.