- August 19, 2023
- Posted by: azimi
- Category: Accident Benefits
Case Study of M.A. v. Co-operators, 2023 CanLII 30777 (ON LAT)
The recently published case of M.A. v. Co-operators illustrates the importance of an applicant’s medical records dating from before the MVA in question to the issue of causation in establishing that the MVA caused the applicant’s currently-experienced injuries and symptoms.
- The facts and issues
The applicant was involved in a MVA that occurred on March 12, 2019. The respondent insurer categorized her injuries as being minor in nature and denied some of her claims to accident benefits that exceeded the Minor Injury Guideline. She applied to the LAT to dispute the denials.
Issues included: a) whether her injuries were minor; b) whether she was entitled to benefits for medical expenses for a chiropractic treatment plan, psychological assessment, psychological treatment plan and chronic pain assessment; and c) issues not relevant to this discussion.
- Legal principles
Entitlement to accident benefits for an injury sustained in a MVA is governed by the legal classification of the injury. A minor injury is “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” Unless one’s policy has optional benefits that provide otherwise, recovery for med-rehab benefits for predominantly minor injuries is limited to $3,500. This limit can be exceeded if the applicant proves they sustained a psychological impairment or chronic pain condition with a functional impairment as a result of the MVA. (These being exceptions because they are not covered by the statutory definition of minor injury).
In M.A. v. Co-operators, the applicant attempted to argue, on both of the above-mentioned grounds, that the MIG limit should not apply to her claim for medical benefits.
- Applicant’s Chronic Pain Argument
The Applicant’s supporting documents included her family doctor’s records, which documented her pre-existing injuries; a psychiatric report from a psychotherapist, which diagnosed her with major depressive disorder with anxious distress and travelling phobia; treatment records from Total Recovery spanning three months; a chronic pain assessment report, which diagnosed her with chronic pain and functional limitations; and a concussion assessment, which concluded that she was still suffering from post-concussive symptoms from the MVA.
Nevertheless, her medical records from the previous two years demonstrated that she was suffering from numerous health conditions – such as back impairments, pain, depression, insomnia, deep vein thrombosis, osteophytes and fibromyalgia – and had been taking various medications to alleviate her pain, insomnia and depression for several years.
Although the applicant argued that her back pain had stopped before the March 12, 2019 MVA, she provided no medical records to support that point. The Tribunal could only assume that the applicant was suffering from the same conditions before and after the MVA.
With regards to the applicant’s supporting evidence in the form of a chiropractor’s report, the Tribunal gave little evidential weight, or merit, to the chiropractor’s report, including its diagnosis of chronic pain and recommended treatment, since the report indicated that the chiropractor was unaware of the applicant’s pre-accident medical history. The chiropractor’s diagnoses were also not corroborated by other medical records from the hospital or family doctor.
With regards to the applicant’s supporting evidence in the form of the concussion assessment, little weight was accorded to it as well. The report was conducted two years after the MVA, was based mostly on self-reporting and the symptoms the applicant reported to the assessor had not been reported by the applicant at the hospital or to her family doctor around the time of the accident.
Medical records showed that the applicant had pre-accident pain complaints, a referral to a psychiatrist and a diagnosis of fibromyalgia from two years before the MVA. The Tribunal concluded that the applicant was suffering from the same chronic pain conditions as she was before the MVA. In other words, the evidence did not show the MVA caused her current symptoms.
- Applicant’s Psychological Injury Argument
The applicant had a pre-accident history of depression and insomnia. One year of pre-accident and 20 months of post-accident medical records were not disclosed for the LAT hearing. The psychiatric report tendered by the applicant stated that she denied any significant pre-accident issues with her health, major surgeries or any significant mental health issues. However, these statements were contradicted by her family doctor’s records which detailed a pre-accident back surgery, other health concerns and a history of mental illness.
- Tribunal’s Decision
The hospital records and the clinical notes from her family physician confirmed that the applicant suffered from whiplash (neck strain), bruising and headaches immediately after the MVA. These injuries fell within the definition of a minor injury; therefore, the MIG limit of $3,500 applied.
If an accident benefits claimant is asserting that a MVA caused their chronic pain condition or psychological impairment, if there is a pre-accident history of chronic pain or mental illness, and if the applicant is of the view that their medical condition had improved or subsided before the MVA, then a key piece of evidence to substantiate that position may be their medical records from before, during and shortly after the time of the MVA.