Applicant Fails to Show Injuries Fall Outside of MIG - 18-000054 RD v. Wawanesa Mutual Insurance Company, 2019 CanLII 14393 (ON LAT)

April 29, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant Fails to Show Injuries Fall Outside of MIG - 18-000054 RD v. Wawanesa Mutual Insurance Company, 2019 CanLII 14393 (ON LAT)

Date of Decision: January 9, 2019
Heard Before: Brian Norris Adjudicator

MINOR INJURY GUIDELINE: definition of MIG; provisions in Schedule; do pre-existing conditions put applicant outside MIG; is applicant entitled to benefits outside MIG; applicant fails to show that injuries fall outside MIG; applicant fails to show pre-existing conditions preclude recovery within funding of the MIG; applicant fails to show that accident has negative impacts on pre-existing conditions

RD was injured in a car accident on May 29, 2017 and sought benefits from Wawanesa pursuant to the SABs. Wawnesa refused to pay for certain medical benefits and RD applied to the LAT for resolution of this dispute.

Issues:

1. Has RD sustained a minor injury as defined under the Schedule as a result of the accident, and is therefore subject to the $3,500.00 funding limit on treatment?
2. Is RD entitled to the costs of examination in the amount of $2,200.00 for a psychological assessment recommended in a treatment and assessment plan dated September 19, 2107?
3. Is RD entitled to a medical benefit in the amount of $3,671.48 for psychological treatment recommended in a treatment and assessment plan dated November 7, 2017?
4. Is RD entitled to the costs of examination in the amount of $1,765.20 for a functional abilities assessment recommended in a treatment and assessment plan dated December 27, 2107?
5. Is RD entitled to interest on any overdue payment of benefits?

RESULT

1. RDs injuries as a result of the accident on May 30, 2017 fall within the Minor Injury Guideline (MIG) and are subject to the $3,500.00 funding limit on treatment.
2. RD is not entitled to the disputed medical benefits as the treatment and assessment plans propose treatment outside the MIG.
3. RD is entitled to the remaining $129.81 in treatment under the MIG. Wawanesa agrees that RD may incur treatment up to $129.81 and Wawanesa is liable to pay the service provider once it has been incurred and invoiced. Alternatively, RD may apply $129.81 to previously incurred treatment costs.

BACKGROUND

RD was driving when he was struck from behind while stopped in traffic. RD was attended to by paramedics at the scene of the accident and declined transportation to the hospital. The following day, RD went to the hospital with back and shoulder pain, and was diagnosed with soft tissue injuries, prescribed pain medication, and discharged. Wawanesa funded treatment under the MIG and RD now seeks funding for additional treatment beyond the MIG.

The Adjudicator reviewed the MIG and determine that there are two avenues for RD to obtain medical treatment outside the MIG:

1. Establish the accident-related injuries fall outside the MIG – showing proof of a fracture, for example; or
2. Establish RD has a documented pre-existing medical condition which would preclude recovery within the confines of the MIG.

Did RD sustain any accident-related injuries which fall outside the MIG?

[RD claims a psychological injury and a gluteus intramuscular grade 1 tear and submits these injuries fall outside the MIG. Wawanesa submits RD‘s injuries are within the MIG because RD has not suffered a psychological injury as a result of the accident and because a grade 1 tear is captured within the MIG.

The Adjudicator reviewed the evidence and determined that RD has sustained predominantly soft tissue injuries which fall within the MIG on the following basis:

• RD’s claim that a tear automatically falls outside the MIG is rejected. RD submitted evidence confirming a gluteus intramuscular grade 1 tear. This is a partial muscle tear and a partial muscle tear is expressly included as an injury within the MIG.
• RD’s medical record does not support the claim RD has suffered a psychological injury as a result of the subject accident.

RD also highlighted several pre-existing medical issues in the submissions which he feels preclude recovery within the MIG. Wawanesa submits RD has not provided a qualified or compelling medical opinion that RD’s pre-existing issues would preclude recovery within the MIG.

The Adjudicator agreed with Wawanesa and found no compelling evidence to support RD’s claims that high cholesterol, hypertension, type 2 diabetes, a pre-existing left gluteal and lateral thigh pain, work-related shoulder injury in November 2015, and motor vehicle accident on March 23, 2016 preclude RD’s recovery within the MIG.

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.