Since September 1, 2010, the MIG has been a thorn in the side of many insureds. With a limit of just $3,500.00 in medical rehab available, many insureds are left suffering because that is just not enough to enable them to receive the treatment they need to recover. Everyone recovers from their injuries differently and for some individuals the pain becomes constant and severe and develops into chronic pain syndrome. Fortunately, as per Arbitrator Shapiro in the case of Arruda and Western Assurance Company, FSCO A13-003926, a diagnosis of chronic pain syndrome is reason to remove an insured from the MIG.
Ms. Arruda was involved in a motor vehicle accident on May 5, 2012 wherein she suffered soft tissue injuries. She was unable to return to work as a result of her injuries and she received therapy until the MIG limit was reached. She then submitted Treatment and Assessment Plans (OCF-18) for additional therapies which were denied. The insurer scheduled multiple Insurer Examinations (IE) to address the OCF18s and to address the continued entitlement to the IRB. The IEs took place in December 2012 and the Executive Summary to the IEs, dated January 8, 2013, denied further benefits. Ms. Arruda filed for mediation followed by arbitration.
Ms. Arruda was seen for a full orthopaedic assessment by Dr. Michael West on February 12, 2014. This report came over a year after the disputed OCF18s and IEs. The report did not address the OCF18s or the IEs but did discuss a “verbal threshold” so it would seem the report was prepared for tort purposes. Dr. West diagnosed Ms. Arruda with chronic pain syndrome. Arbitrator Shapiro noted the IE doctor commented on Ms. Arruda’s condition in December of 2012 as resolving but Dr. West commented on her condition in February 2014 as not resolved and in fact chronic.
The report was provided to Western who did not respond to the report. Arbitrator Shapiro noted the insurer has an ongoing duty to assess and reassess a claim as new information is available, but Western failed to consider Dr. West’s report and new diagnosis. In Western’s submissions they did not mention Dr. West’s report nor did they offer any response to Ms. Arruda’s argument that chronic pain syndrome removes her from the MIG. Arbitrator Shapiro accepted Dr. West’s report and diagnosis of chronic pain syndrome and ruled that Ms. Arruda be removed from the MIG.
Nicholson Gluckstein Lawyers