Applicant shows injuries fall outside MIG - 18-00007 JS v. Cooperators General Insurance Company, 2019 CanLII 14395 (ON LAT)

April 30, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant shows injuries fall outside MIG - 18-00007 JS v. Cooperators General Insurance Company, 2019 CanLII 14395 (ON LAT)

Date of Decision: January 14, 2019
Heard Before: Adjudicator Brian Norris

MIG and IRB - applicant fails to show complete disability to work; applicant shows that injuries exceed MIG

JS was injured in a car accident on January 5, 2016 and sought benefits from The Cooperators pursuant to the SABs but when The Cooperators refused to pay for certain benefits JS applied to the LAT for resolution of this dispute.

ISSUES

1. Is JS entitled to receive a weekly IRB in the amount of $290.85 from August 3, 2016 to July 6, 2017?
2. Are JS’s injuries predominantly minor injuries as defined in the Schedule and subject to treatment within the MIG?
3. Is JS entitled to the costs of an examination in the amount of $1,770.91 for a psychological assessment recommended in a treatment plan dated May 9, 2016?
4. Is JS entitled to a medical benefit in the amount of $3,517.60 for chiropractic, massage, and physiotherapy treatment recommended in a treatment plan dated April 22, 2016?
5. Is JS entitled to interest on the overdue payment of benefits?

RESULT

1. JS is not entitled to a weekly IRB for the period August 3, 2016 to July 6, 2017.
2. JS sustained injuries which fall outside the MIG and JS is not bound by the MIG funding limit.
3. JS is entitled to the psychological assessment submitted in a treatment plan dated May 9, 2016.
4. JS is entitled to the treatment plan for chiropractic, massage, and physiotherapy treatment dated April 22, 2016.
5. JS is entitled to interest on the disputed psychological assessment and chiropractic, massage, and physiotherapy treatment plan as payment of the benefits are overdue.

BACKGROUND

JS was was driving when she was struck from behind at a red light. JS did not seek medical attention at the scene of the accident. The car was towed and JS was taken home from the scene of the accident. JS attended a hospital following the accident complaining of neck, shoulder and back pain. JS engaged in physiotherapy, massage, and chiropractic treatment.

JS was later referred for a psychological assessment for emotional difficulties which were interfering with JS’s psychological functioning. Funding for the assessment was denied by The Cooperators. JS claimed and received an IRB for the period from January 20, 2016 to April 20, 2016 and from June 21, 2016 to August 3, 2016. The Cooperators suspended JS’s IRB effective April 21, 2016 citing grounds that JS had failed to attend a properly scheduled IE. JS later attended the IE and the benefit was reinstated on June 21, 2016 and paid until August 3, 2016.

DID JS FAIL TO ATTEND AN INSURER’S EXAMINATION?

The Cooperators holds the position JS failed to attend a properly scheduled IE and is not entitled to any IRBs as a result. JS claims the notice was never received and submits this is a reasonable excuse for not attending the assessment.

The Schedule provides The Cooperators the authority to subject JS to an in-person assessment. When determining ongoing entitlement to a specified benefit such as IRBs, an applicant’s failure to attend a properly scheduled IE allows The Cooperators to determine JS is no longer entitled to the benefit or to suspend the benefit until the IE is attended.

The Cooperators submits that on March 9, 2016 it provided JS with notice of two in-person IEs scheduled for April 12 & 20, 2016. The notices were mailed to JS and faxed to JS’s representative. The Cooperators states that the assessment company contacted JS and confirmed the assessments on the day prior to each assessment.

The Adjudicator found on the basis of the evidence that The Cooperators provided JS with proper notice of the in-person IEs and JS failed to attend the examinations without reasonable explanation and JS is not entitled to IRBs for the period from April 21, 2016 to June 20, 2016.

IS JS ENTITLED TO AN IRB BEYOND AUGUST 3, 2016?

During the first 104 weeks after an accident, an IRB is payable to an insured who is substantially unable to perform the essential tasks of his or her pre-accident employment as a result of an impairment.

JS was a collector at a collection agency at the time of the accident. JS claims entitlement to an IRB from the stoppage date of August 3, 2016 to July 6, 2017, when JS returned to work. JS submits her injuries prevented her from completing the essential tasks of employment, and that her employer terminated the employment on that basis.

Based on the medical evidence The Cooperators submits JS does not qualify for an IRB beyond August 3, 2016 because, according to The Cooperators, JS did not have a substantial inability to perform the pre-accident employment tasks required of JS. The Adjudicator agreed with the evidence presented.

THE MINOR INJURY GUIDELINE

The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident.

If JS’s injuries are determined to be minor and fall within the MIG, there are two avenues for JS to obtain medical treatment outside the MIG:

• Establish the accident-related injuries fall outside the MIG – showing proof of a fracture, for example; or
• Establish JS has a documented pre-existing medical condition which would preclude maximal recovery within the confines of the MIG.

Did JS sustain any accident-related injuries which fall outside the MIG?

JS claims a psychological injury as a result of the accident. JS reports increased anxiety, irritability, symptoms of depression and post-traumatic stress disorder. JS submits these injuries fall outside those defined in the MIG.

The Cooperators acknowledges JS’s psychological symptoms; however, argue that JS has not suffered a psychiatric condition as a result of the accident. Based on the IE report and addendum JS’s driving and passenger anxiety is minor and the stress JS was under was due more to caring for an ailing parent and the loss of employment and not as a result of the accident.

Considering the evidence The Adjudicator found that JS has suffered psychological injuries which fall outside the MIG.

DOES JS HAVE A DOCUMENTED PRE-EXISTING MEDICAL CONDITION WHICH WOULD PRECLUDE MAXIMAL RECOVERY WITHIN THE CONFINES OF THE MIG?

An analysis of JS’s pre-existing condition is not required because I have found the psychological injury sustained by JS as a result of the accident is not predominantly a minor injury and accordingly have found that JS is not bound by the funding limits in the MIG.

THE PSYCHOLOGICAL ASSESSMENT

[The Adjudicator found that based on the evidence and submissions JS suffers from psychological injuries as a result of the accident. On this basis the psychological assessment is reasonable and necessary.

THE TREATMENT PLAN DATED APRIL 22, 2016

Based on the submissions and considering the finding on the applicability of the MIG, the Adjudicator found that JS has demonstrated the treatment plan dated April 22, 2016 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.