Applicant Fails To Show Injuries Fall Outside MIG - PI and Aviva - 16-001320 v Aviva Insurance Canada, 2017 CanLII 59516 (ON LAT)

October 20, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

PI and Aviva - 16-001320 v Aviva Insurance Canada, 2017 CanLII 59516 (ON LAT)

Date of Decision: August 30, 2017
Heard Before:  Adjudicator Chris Sewrattan

MIG: applicant fails to prove his injuries place him outside of MIG; pre-existing injuries are not worsened by accident;

PI was injured in a car accident on March 7, 2014, and sought benefits under the SABs which were by Aviva when he reached the MIG limit of $3,500. PI seeks a determination from the LAT that his injuries cannot be treated within the MIG and, that he is entitled to medical benefits for treatment and assessments outside of the Minor Injury Limit.

Issue:

1. Do PI’s injuries fall within the MIG or the Minor Injury Limit of $3,500? And if so, is he entitled to the following medical benefits:
   1. $3,584.20 for chiropractic services in a Treatment Plan dated March 26, 2015?
   2. $1,886.80 for chiropractic services in a Treatment Plan dated August 5, 2014?
   3. $1,303.04 for chiropractic services in a Treatment Plan dated May 12, 2014?
   4. $2,830.26 for psychological treatmentn a Treatment Plan dated February 12, 2016?
   5. $1986.00 for a psychological assessment in a Treatment Plan dated February 26, 2015?
   6. $200.00 for the completion of a Treatment Plan submitted on August 14, 2014?
   7. $200.00 for the completion of a Disability Certificate submitted on July 30, 2014?
   8. $850.00 for a Form 1 Assessment in a treatment plan on February 25, 2015?
   9. $2,830.26 for psychological treatment in a Treatment Plan, denied January 23, 2017?

Result:

1. PI’s injuries fall within the MIG and the Minor Injury Limit. PI has reached the $3,500 limit and, as a result, PI is not entitled to any of the medical benefits in dispute.

Analysis:

The Adjudicator reviewed the law and the evidence. The burden is on PI to prove that his injuries fall outside the MIG and that the treatments are reasonable and necessary. The Adjudicator noted the medical issues in dispute fall on whether PI’s injuries are characterized as minor injuries, According to Aviva, PI has already reached the $3,500 payment limit.

The Adjudicator considered the accident’s effect on PI’s psychological and physical condition, and then determined whether PI can prove that he suffers from a pre-existing medical condition that will prevent him from achieving maximal recovery if he is subject to the Minor Injury Limit.

The Adjudicator reviewed that medical evidence submitted by PI, specifically his psychological impairment, physical injury, and pre-existing injuries.

The Adjudicator was not convinced that PI suffers from a psychological impairment as a result of the accident. The Adjudicator preferred the medical assessment which concluded that PI exhibits symptoms of post-accident adjustment reaction, including mixed subclinical depressive-anxiety symptoms. The symptoms were not severe enough to conclude that PI suffers from a psychological impairment. PI has failed to prove on balance of probabilities that he suffers from a psychological impairment.

PI has failed to prove that he suffers from a physical injury that is not predominantly minor. His claims of injuries are not sufficiently supported by medical evidence. PI has failed to prove that pre-existing injuries preclude the application of the Minor Injury Limit.  There is insufficient indication that PI is prevented from achieving maximal medical recovery if he is subject to the Guideline.

PI has failed to prove that his injuries are not subject to the Minor Injury Guideline. As a result, payment for his benefits is capped by the $3,500 Minor Injury Limit. Since PI has already reached this limit, he is not entitled to any of the Treatment Plans in dispute.

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.