Applicant Fails to Provide Evidence - Claim for Exclusions from MIG Denied - GC and Wawanesa LAT 17-001855

December 04, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

GC v Wawanesa Mutual Insurance Company, LAT 17-001855 2017 CanLII 76912 (ON LAT)

Decision Date: October 27, 2017
Heard Before:  Adjudicator Anna Truong

MINOR INJURIES: applicant fails to provide evidence in format requested; applicant provides evidence with no context; applicant provides incomplete evidence; only provides submissions of injuries not evidence of injuries;

GC was involved in car accident on March 20, 2015, and sought SABs which were denied by Wawanesa. When mediation failed, GC applied for arbitration at the LAT.  

Issues:

1. Did GC sustain predominately minor injuries as defined under the Schedule?
2. If the answer to issue one is no:
   1. Is GC entitled to the cost of an attendant care assessment in the Treatment and Assessment Plan (OCF-18) dated April 28, 2015?
   2. Is GC entitled to the cost of a psychological assessment in the Treatment and Assessment Plan (OCF-18) dated June 5, 2016?
3. Is GC entitled to costs pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure?

RESULT

1. Based on the totality of the evidence GC sustained predominately minor injuries as defined under the Schedule. Since the answer to issue one is yes, GC is not entitled to any of the assessments in dispute. GC is not entitled to costs.

The MIG establishes a well-defined framework for the treatment of minor injuries. It limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the MIG. There are some provisions for injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 if they provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.

Wawanesa submitted that the onus of establishing entitlement beyond the cap rests with the claimant.

GC’s submissions are presented in a letter approximately five pages in length, single-spaced without any paragraph spacing. There are no proper pinpoint references to any of the supporting evidence provided with the submissions. GC does not use proper quotations and his arguments are interspersed between excerpts of evidence. It is very difficult to separate arguments from evidence quoted within his submissions. Furthermore, despite the explicit Order of the Case Conference Adjudicator, there is no index and GC’s submissions are not paginated. They appear to consist of four pages copied from an initial psychological pre-screening report of October 16, 2015, and a psychological report dated August 15, 2016. The remaining page of GC’s submissions consists of a reference to workplace incidents, which appear unrelated to the accident. GC referenced two pages from his employment file: pages 42 and 70. GC’s employment file was not paginated, so the Adjudicator had trouble locating the two pages GC referenced in his submissions. Therefore, the Adjudicator only examined the excerpts GC provided in his submissions.

GC referenced two workplace incidents post-accident. With respect to these incidents, GC argued he was exhausted and in a “bad mood” on these days, because he did not sleep well due to back pain and stress. However, GC does not specify the cause was accident-related. Furthermore, GC only makes submissions and does not provide any evidence to support this, not even an affidavit. There is no evidence e that these workplace incidents were caused by his accident-related impairments. GC has not explained why these incidents support his removal from the MIG, or his entitlement to the assessments in dispute. Accordingly, the adjudicator found these incidents have no bearing on whether or not GC has sustained a predominantly minor injury, and no bearing on whether or not the medical benefits in dispute are reasonable and necessary.

GC submits the evidence is “overwhelming” that his injuries do not fall within the MIG and the medical benefits in dispute are reasonable. However, he does not specifically explain why. He only provides submissions and submissions are not evidence. GC must direct the adjudicator to the relevant evidence in support of his case and explain why he meets the test based on this evidence. An applicant cannot simply submit evidence and leave it up to the adjudicator to connect the dots and make his case. GC must explicitly explain why the evidence is supportive of his case. He has failed to do so.

Based on the evidence provided the Adjudicator found that GC has not met his onus of proving on a balance of probabilities he did not sustain predominately minor injuries as a result of the accident. Therefore, GC has sustained predominately minor injuries and can be appropriately treated within the MIG.

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