Applicant fails to show injuries fall outside MIG or pre-existing medical condition - VS v The Dominion of Canada General Insurance Company, LAT 17-001670

December 11, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

VS v The Dominion of Canada General Insurance Company, LAT 17-001670  2017 CanLII 69445 (ON LAT)

Decision Date: October 17, 2017
Heard Before: Adjudicator S.F.  Mather

MINOR INJURY GUIDELINE and ENTITLEMENT TO BENEFITS: applicant fails to proved that injuries fall outside of MIG; applicant fails to provide evidence of a pre-existing condition that would remove him from the MIG

VS was in a car accident on October 31, 2016 and sought medical benefits for chiropractic and physiotherapy under the SABs. Dominion denied the benefits and when mediation failed VS applied to the LAT for arbitration.

Dominion took the position that VS’s injuries are predominantly minor injuries as defined in the Schedule subject to treatment within the MIG and VS’s claims exceeded the $3500 cap.

VS argued his pre-existing condition will prevent him from achieving maximal recovery under the Guideline, and his injuries fall outside the MIG.

Issues:

1. Is Dominion prohibited from taking the position that VS has an impairment to which the Guideline applies?
2. If the answer to issue No.1 is no: Are VS’s injuries predominantly minor injuries as defined in s. 3(1) of the Schedule and, thus subject to a monetary limit of $3,500 pursuant to s. 18 of the Schedule?
3. Is VS entitled to receive a medical benefit in the amount of $1,294.03 for chiropractic services recommended in a treatment plan submitted on January 4, 2017?
4. Is VS entitled to receive a medical benefit in the amount of $2,075.48 for chiropractic services in a treatment plan submitted February 22, 2017?
5. Is VS entitled to interest on the overdue payment of benefits?
6. Is Dominion liable to pay an award because it unreasonably withheld of delayed payments to VS?
7. Are VS and respondent entitled to costs?

Result

1. Dominion is not prohibited from taking the position that VS has an impairment to which the Guideline applies.
2. VS’s injuries are predominantly minor injuries as defined in s. 3(1) of the Schedule and fall within the Minor Injury Guideline as defined under the Schedule and are subject to the $3,500 Cap.
3. In light of my finding in 2. above, I find that:
   1. VS is not entitled to receive a medical benefit in the amount of $1,294.03 for chiropractic services
   2. VS is not entitled to receive a medical benefit in the amount of $2,075.48 for chiropractic services.
4. VS is not entitled to interest on overdue benefits.
5. Dominion is not liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to VS.
6. Neither party is entitled to costs.

VS submits that Dominion’s failed to provide the medical reasons required by s. 38(8) for a denial of the claims to be proper.  For this reason, VS argues that Dominion is prohibited from taking the position that VS’s has injuries to which the Guideline applies.

Section 38(8) of the Schedule requires an insurer to respond to a treatment and assessment plan within ten days of reciept and to provide the insured person with notice of certain things including the medical reasons and all other reasons why the insurer considers any goods, services, assessment, and examinations or the proposed cost of them, not to be reasonable and necessary.  If the insurer believes that the Guideline applies to the insured’s impairment s. 38 (9) of the Schedule requires that the s. 38(8) notice must so advise the insured person.

VS has not made any submissions with respect to this treatment plan and has not provided a copy of the treatment plan or the notice from Dominion denying the services. Dominion’s evidence includes a copy of the treatment plan, and a copy of a letter dated January 18, 2017 denying the services requested in the treatment plan.

The Arbitrator reviewed both treatment plans and letters and notes that the treatment plans are for further treatment within the Guideline and there is no statement that VS has a pre-exisiting condition that will prevent him from achieving maximal recovery from the minor injury if he is subject to a $3500 Cap. The letter advises that Dominion has concluded that the Minor Injury Guidline applies to VS’s impairment because the VS suffered a predominantly minor injury. The letter further advises that there is no more funding available within the Guideline.

On this basis the Arbitrator was satisfied that this denial letters meets the requirement of s. 38(8) of the Schedule. The medical reason provided is that VS’s injuries are predominantly minor injuries, which is the same opinion found in the treatment plans.

Applicability of the Minor Injury Guideline

The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3.

The burden of proof of establishing entitlement to medical benefits beyond the $3,500 cap for minor injuries rests with VS. VS’s submissions concede that VS suffered minor injuries in the accident. VS argues that he has a pre-existing medical condition which will prevent him from achieving maximal recovery if his benefits are limited to the Guideline Cap.

The pre-existing condition that VS relies on for treatment outside of the Guideline is a condition of chronic chest pain. VS has not met his burden of proof because he has not provided compelling evidence from his health care practitioner as required by section 18(2) of the Schedule that he has a pre-existing medical condition that was documented by a health care practitioner before the accident that will prevent him from achieving maximal recovery from the minor injury if the he is subject to the $3,500 limit.

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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.