Applicant fails to show injuries fall outside MIG - 17-003539 v Aviva General Insurance, 2018 CanLII 13148 (ON LAT)

May 31, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

17-003539 v Aviva General Insurance, 2018 CanLII 13148 (ON LAT)

Date of Decision: February 16, 2018
Heard Before: Adjudicator Brian Norris

MIG: applicant fails to prove injuries fall outside MIG; applicant denied benefits exceeding MIG

The applicant was injured in a car accident on June 15, 2015 and sought benefits from Aviva pursuant to the SABs and when Aviva refused to pay for certain medical benefits the applicant applied to the LAT for resolution of this dispute.

ISSUES

1. Has the applicant sustained a minor injury as defined under the Schedule as a result of the accident?
2. Is the applicant entitled to a medical benefit in the amount of $353.28 for chiropractic services submitted to Aviva on August 27, 2015?
3. Is the applicant entitled to a medical benefit in the amount of $4,249.31 for chiropractic services submitted to Aviva on October 1, 2015?
4. Is the applicant entitled to the cost of a physiatry assessment in the amount of $1,983.72, submitted to Aviva on July 10, 2015?

RESULT

1. The applicant sustained a minor injury as defined under the Schedule. The applicant has not provided compelling medical evidence to establish that maximum medical recovery cannot be reached within MIG funding limit of $3,500.00. The applicant is not entitled to the medical benefits claimed because they have exhausted the funding provided for under the MIG.

The applicant was driving when she was struck from behind while waiting at a red light. The applicant visited a family physician the following day and was diagnosed with sprain/strain of the right shoulder, lower back, and legs. The applicant was referred for x-rays and an ultrasound which showed there appeared to be a partial thickness tear of the shoulder.

Aviva approved and funded initial treatment but when the applicant sought funding for a physiatry assessment Aviva denied funding of the physiatry assessment on the finding of an IE which opined that the assessment was not reasonable and necessary because the applicant suffered minor injuries as defined in the Schedule and was subject to the $3,500.00 funding limit.

The applicant then submitted a chiropractic treatment plan in the amount of $1,278.35 which Aviva partially approved up to the funding cap in the MIG.

Aviva denied all subsequent claims. The applicant disputes Aviva’s denials of the treatment plans and Aviva’s determination that the applicant’s injuries are within the MIG.

The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. The applicant relies on the exception to the $3,500.00 funding cap provided in section 18(2) which allows that the funding limit does not apply to injured people if their health practitioner determines and provides compelling evidence that they have a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the injured person from achieving maximal recovery from the minor injury if they are subject to the MIG funding limit.

The Adjudicator reviewed the medical evidence regarding the applicant’s injuries the Adjudicator determined the applicant failed to prove that the injuries fall outside the MIG. The applicant is subject to its $3,500.00 funding limit.

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.