Applicant fails to make case that physical or psychological issues fall outside MIG - 17-005145 v Certas Home and Auto Insurance Company, 2018 CanLII 76428 (ON LAT)

January 16, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

17-005145 v Certas Home and Auto Insurance Company, 2018 CanLII 76428 (ON LAT)

Date of Decision: April 10, 2018
Heard Before: Adjudicator Brian Norris

MINOR INJURY GUIDELINE (MIG): onus on applicant to provide evidence injuries fall outside the MIG; applicant fails to provide evidence that physical injuries fall outside of MIG; applicant fails to provide evidence of psychological issues exist or were caused by or worsened by accident

The applicant was injured in a car accident on July 15, 2016 and sought benefits from Certas pursuant to the SABs. Certas maintains the applicant’s injuries fall within the MIG and denied certain medical benefits because the applicant had reached the funding limit of $3,500.00. The applicant has applied to the LAT for resolution of this dispute.

Issues

1. Do the applicant’s injuries fall within the MIG?
2. Is the applicant entitled to a medical benefit in the amount of $2,495.48 for physiotherapy treatments in a treatment and assessment plan dated January 31, 2017?
3. Is the applicant entitled to interest on any overdue payment of benefits?

Result

1. The applicant sustained a minor injury and is subject to the MIG funding limit of $3,500.00. The applicant is not entitled to the medical benefit in dispute and no interest is payable.

Background

The applicant rear ended another car on June 12, 2015 and was transported to by ambulance to the hospital where the applicant complained of neck, back, and left wrist pain as well as a numbness and tingling sensation in all extremities. The applicant was seen by hospital staff, however the applicant chose to leave the hospital before x-rays were performed and before any diagnosis was rendered. Following this, the applicant sought and received the full complement of treatment under the MIG. The applicant applied for further treatment but Certas denied funding for this because the MIG funding limit of $3,500.00 was exhausted.

The Adjudicator reviewed the MIG and the Schedule noting the MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear, and under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

The applicant submits that the MIG should not apply in this situation as the applicant has a pre-existing injury, an intra-articular fracture in the third (ring) finger, which prevents recovery within the funding limit of $3,500.00. In addition to the finger injury, the applicant submits that the chronicity of the pain the applicant is experiencing requires treatment beyond the MIG.

From a psychological perspective, the applicant submits that a psychologist conducted a psychological assessment on July 26, 2017 and produced a report dated July 31, 2017, outlining the findings of the assessment. In the report the applicant was diagnosed with anxiety and depression. Although not specifically mentioned, the Adjudicator inferred the applicant’s position is that psychological injuries fall outside the MIG and that the funding limit of $3,500.00 should not apply.

Certas submits that the applicant’s injuries are soft tissue injuries that are subject to the MIG and the funding limit it provides. Certas submits that, although the applicant noted a pre-existing injury in the form of a finger fracture, the applicant has failed to show how the pre-existing injury prohibits recovery within the MIG.  Certas submits that the applicant has not suffered from a psychological injury which would require treatment outside the MIG. Certas further submits that although the applicant has provided a psychological assessment report, there is no independent or corroborating evidence in support of a psychological injury which would open up funding for treatment beyond the MIG.

The Adjudicator noted that the burden is on the applicant to provide evidence that the MIG was incorrectly applied. The Adjudicator then reviewed the medical evidence.

After reviewing the submissions and evidence the Adjudicator found that the applicant has not suffered from a psychological injury as a result of the accident which would require treatment beyond the MIG. The applicant’s main complaints are pain and not psychological symptoms. The evidence of a psychological injury in unreliable because it is inconsistent with the rest of the applicant’s entire medical record. The applicant’s complaints of pain are evidenced in the clinical notes and records of the family physician, and the records provided by Health Max Physio Inc. There are virtually no complaints of a psychological injury referenced in any of those records to corroborate the positive findings in the psychological assessment report.

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.