September 16, 2013

Accident Benefits Update – Painfully Objective


For the week of September 16 to September 20, 2013

Shmuel and Perth – Decision Date: 2013-08-12, Adjudicator: Edward Lee, Regulation: 403/96, Decision: Arbitration, Final Decision, FSCO 4022.

Channoch Shmuel, (the “Insured”) was injured in a motor vehicle accident on November 12, 2009.  He applied for statutory accident benefits from his insurance company, Perth Insurance Company (“Perth”), for benefits payable under the Schedule. (The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended).

The Insured sustained soft tissue injuries, which resulted in severe chronic pain. Three years post accident the insured still remained in constant pain. The benefits applied for by the Insured included medical, housekeeping home maintenance, attendant care and the cost of examinations. The final decision by Arbitrator Lee was that all accident benefits were denied except for a partial approval of a number of treatment plans.



Arbitrator Lee was presented with medical evidence from the insured’s and Perth’s respective chiropractors. Arbitrator Lee preferred the evidence of Perth’s chiropractor, who stated that the Insured had suffered soft tissue injuries, and there was an absence of, “objective neuromuscular pathology”.

Arbitrator Lee applied General Accident Insurance Company and Violi, [2000] O.F.S.C.I.D. No. 171 which held that the reasonableness and necessity of a treatment must be established on the following criteria:

the treatment goals, as identified, are reasonable;

these goals are being met to a reasonable degree; and

the overall costs [not just financial, but also investment of time, etc.] of achieving these goals is reasonable taking into consideration both the degree of success and the availability of other treatment alternative.

After applying the above criteria Arbitrator Lee found that the treatment plans submitted by the insured were only partially reasonable and necessary.



Chronic pain with no obvious etiology is a problem encountered regularly with clients who have been involved in a motor vehicle accident.  The common feature in these types of cases is that pain relief is the main objective in the treatment plan.  Arbitrator Lee did go on to mention that pain relief was a “legitimate medical and rehabilitation goal”, although he still felt rehabilitation was the ultimate goal. It is reasonable to be critical of Arbitrator Lee’s analysis as he has fallen into the common trap that chronic pain has an end point that can be achieved with the appropriate treatment.

An objective scientific basis for the pain need not be a relevant consideration in a client with chronic pain. This is supported in Violi which stated that, “while insurers should not be expected to fund ineffective treatment, effectiveness need not be proven to a level of scientific certainty.”


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