Applicant fails to show pre-existing condition will prevent him from maximal recovery in MIG

January 22, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Jasween Rai v Aviva Insurance LAT 17-002491

Decision Date: December 11, 2017
Heard Before:  Adjudicator Sandeep Johal

MIG: applicant’s injuries fall within MIG; applicant did not provide evidence that his pre-existing condition is preventing him from maximal recovery

Mr. Rai was injured in a car accident on May 28, 2015 and medical benefits pursuant to the SABs that were denied by Aviva because he was placed into MIG.  Mr. Rai disagreed with this decision and applied to the LAT.

Issues:

1. Are Mr. Rai’s injuries considered predominantly minor?
2. If the answer to issue one is no, then:
   1. Is Mr. Rai entitled to receive a medical benefit in the amount of $1,397.00 for physiotherapy services, submitted January 6, 2016?
   2. Is Mr. Rai entitled to receive a medical benefit in the amount of $1,197.00 for physiotherapy assessment services submitted in a treatment plan April 18, 2016?
3. Is Mr. Rai entitled to interest on any overdue payment of benefits?

RESULT

1. Mr. Rai has predominately minor injuries as defined in the Schedule.
2. Mr. Rai does not have a pre-existing condition that would prevent recovery under the MIG.

The MIG establishes a framework for the treatment of minor injuries defined in section 3 of the Schedule as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”, and 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. The Schedule makes provision for injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap.  To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident that will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.

The Arbitrator reviewed the evidence and determined that both parties’ medical evidence suggests Mr. Rai’s injuries fall within the definition of “minor injury” as listed in section 3(1) of the Schedule. Specifically, he was diagnosed with sprain and strain-type injuries, including dizziness, giddiness and post-traumatic stress disorder, according to the Disability Certificate (OCF-3).

Mr. Rai submits that he has a pre-existing condition and has provided medical evidence to show pre-existing back and neck pain from a disc extrusion and disc bulges, with a diagnosis of “degenerative disease with disc herniation” from his family docto.  This diagnosis was made in 2010, prior to the current motor vehicle accident.  Mr. Rai provided an MRI, an x-ray and his family doctor’s clinical notes and records as evidence of a pre-existing medical condition.

The arbitrator accepted that there is compelling evidence of a pre-existing medical condition which was documented by a health practitioner prior to the accident.  However, Mr. Rai did not provide evidence that his pre-existing condition is preventing him from maximal recovery if he is restricted to the $3,500 treatment limit within the MIG.

The Arbitrator found that Mr. Rai sustained predominately minor injuries as defined in the Schedule; and that he has not established that he has a pre-existing medical condition that prevents recovery under the MIG and therefore Mr. Raiis not entitled to the treatment plans or the interest that is in dispute for this application.

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.