A determination that psychological injuries exceed MIG does not mean benefits for physical injuries also fall outside MIG

January 25, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v ACE INA LAT 17-001422 2017 CanLII 85687 (ON LAT)

Decision Date: November 15, 2017
Heard Before: Adjudicator Nicole Treksler

ENTITLEMENT TO BENEFITS: IE shows applicant's psychological injuries fall outside MIG; applciant must still prove that physical injuries fall outside MIG; treatment must be reasonable and necessary

The applicant was injured in an automobile accident on March 3, 2015, and sought benefits pursuant to the SABs. ACE denied the plans based on IE reports indicating that the treatment plans were not reasonable and necessary.  ACE is also seeking repayment of income replacement benefits in the amount of $8,583.12 during the period of March 14, 2016 to January 11, 2017.

The applicant must show on a balance of probabilities that the medical benefits are reasonable and necessary.

Issues:

1. Is the applicant entitled to receive medical benefits recommended by Toronto Health Care Clinic as follows:
   1. $1,411.20 for a chiropractic treatment plan dated June 11, 2015
   2. $2,521 for a chiropractic treatment plan dated March 12, 2015
   3. $1,521.26 for chiropractic treatment plan dated April 16, 2015$1,611.21 for a chiropractic treatment plan dated July 20, 2015 and
      1. $733.33 for assistive devices recommended in a treatment plan dated July 9, 2015.
2. Is the applicant entitled to receive medical benefits recommended by Gibson Wellness as follows:
   1. $3,594.30 for a physiotherapy treatment plan dated January 6, 2016$3,295 for a physiotherapy treatment plan dated November 23, 2015
   2. $3,745 for a physiotherapy treatment plan dated October 5, 2015
   3. $3,195 for a physiotherapy treatment plan dated November 23, 2015
3. Is the applicant entitled to the payment for the cost of a psychological assessment in the amount of $2,000, recommended in a treatment plan dated May 16, 2015?
4. Is the applicant obliged to repay ACE $8,583.12 in income replacement benefits (IRBs) paid during the period of March 14, 2016 to January 11, 2017?
5. Is ACE liable to pay an award for unreasonably withholding or delaying payment of benefits under section 10 of Ontario Regulation 664 (section 10 award)?

Result:

1. The applicant failed to demonstrate that he is entitled to the medical benefits in dispute and the cost of the psychological assessment. As such, a section 10 award is not warranted.
2. The applicant is required to repay $8,583.12 in the overpayment of IRBs.
3. Neither party is entitled to costs.

The Arbitrator noted that although ACE determined that the applicant had not suffered predominantly minor injuries as a result of a psychology report prepared by its assessor this determination does not automatically entitle the applicant to medical benefits.

The onus is on the applicant to show that the medical expenses are reasonable and necessary, irrespective of the fact that his injuries are not predominantly minor and not subject to the $3,500 limit in the MIG.  The Arbitrator reviewed all the medical evidence and the law. The Arbitrator determined that the applicant failed to show that he is entitled to any of the chiropractic and physiotherapy benefits in dispute.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

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.