Applicant Clearly Demonstrates Head Injury Diagnosis - Kolanski v. TD Insurance Meloche Monnex, 2021 CanLII 30824 (ON LAT)

May 06, 2021, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Kolanski v. TD Insurance Meloche Monnex, 2021 CanLII 30824 (ON LAT)

HEARD BEFORE: Adjudicator Theresa McGee, Vice-Chair
DATE OF DECISION: 15 April 2021

ARE INJURIES SUPPORTED: applicant provides clear evidence of diagnosis of head injury; head injury falls outside the MIG; post concussion syndrome; respondant's position is untenable

BACKGROUND

The applicant was injured in a car accident on November 3, 2017, and sought benefits pursuant to the SABs from TD. The application for benefits was denied based on the determination that the applicant’s injuries did not fall within the MIG guidelines. The applicant appealed the decision to the LAT.

On the day of the accident, the applicant was transported to the emergency department at the hospital where she was diagnosed with a head injury. Approximately one-week later, the applicant was seen by her family physician and diagnosed with concussion syndrome and a head injury in relation to the accident, whiplash and cervical spine strain. She was referred for rehabilitation.

ISSUES 

1. Did the applicant sustain predominantly minor injuries as defined under the Schedule?
2. Is the applicant entitled to a medical benefit in the amount of $2,282.32 for chiropractic treatment?
3. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a Psychological Assessment?
4. Is the applicant entitled to interest on any overdue payment of benefit?

RESULT

1. The applicant’s accident-related injuries exceed the Schedule’s definition of a minor injury and therefore the Minor Injury Guideline does not apply.  
2. The applicant has established, on a balance of probabilities, that the medical benefits in dispute are reasonable and necessary.  
3. The respondent is liable to pay the benefits with interest calculated in accordance with the Schedule.

ANALYSIS

The applicant is responsible to prove that on the balance of probabilities her accident-related impairment is not predominantly a minor injury. Minor injuries are clearly defined in the Schedule, sec. 3.

The applicant provided the medical evidence supporting head injury. A head injury clearly exceeds the definition of a minor injury under the Schedule, and the TD’s position that the Minor Injury Guideline applies to the applicant is untenable.  

The Minor Injury Guideline does not apply in respect of the applicant. She will be entitled to medical and rehabilitation benefits up to a maximum of $65,000.00 if she can establish, on a balance of probabilities, that they are reasonable and necessary as a result of the accident under s. 15(1) of the Schedule.

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.