Applicant lacks veracity - 17-006513 v The Co-Operators Insurance Company, 2018 CanLII 81959 (ON LAT)

January 21, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

17-006513 v The Co-Operators Insurance Company, 2018 CanLII 81959 (ON LAT)

Date of Decision: April 23, 2018
Heard Before: Adjudicator Christopher Ferguson

AMENDED DECISION

MINOR INJURY GUIDELINE (MIG): MIG caps benefits at $3500; applicant claims psychological damages removing her from MIG; applicant provides contradictory evidence to assessors and doctors; applicant lacks veracity

The Applicant was involved in a car accident on February 2, 2016, and sought accident benefits pursuant to the SABs, and then applied to the LAT when her claim was denied by The Co-Operators on the basis that all of the applicants claims fall within the MIG and therefore subject to the $3500 benefit limit as set out in the Schedule.

Issues:

1. Did the applicant sustain predominantly minor injuries as defined by the Schedule? Is her entitlement to benefits limited by the MIG?
2. If the applicant’s injuries are not within the MIG, then I must determine the following issues:
   1. Is the applicant entitled to a medical benefit in the amount of $1,999.82 for psychological treatment recommended by Normed in a treatment plan (OCF-18) submitted on August 15, 2017, and denied on September 1, 2017?
   2. Is the applicant entitled to medical benefits for treatment recommended in the following OCF-18s:
   3. $2,569.40 for chiropractic and massage treatment submitted on February 8, 2017, and denied on February 24, 2017?
   4. $1,418.00 for chiropractic and massage treatment submitted on September 2, 2016, and denied on September 19, 2016?
   5. $2,027.00 for assistive devices submitted on July 22, 2016, and denied on August 8, 2016?
3. Is the applicant entitled to a medical benefit in the amount of $1,195.00 for chiropractic treatment recommended in an OCF-18 submitted on June 8, 2016 and denied on July 4, 2016?
4. Is the applicant entitled to a benefit for the cost of examination in the amount of $2,640.00 for an orthopedic assessment recommended in an OCF-18/OCF-23 submitted on May 31, 2016 and denied on July 4, 2016?
5. Is the applicant entitled to interest on any overdue payment of benefits?

Results:

1. The applicant’s injuries are predominately minor.  Her entitlement to benefits is governed by the MIG.  Her application is dismissed.
2. There is no interest on overdue payment of benefits due.

The Adjudicator reviewed the Schedule and the MIG noting the burden lies on the applicant to show their injuries fall outside the MIG.

There is no evidence that the applicant’s physical injuries were anything but predominantly minor.  However, the applicant argues that she should be removed from the MIG because she sustained psychological injuries, had a pre-existing psychological condition and suffers from chronic pain.

Psychological impairments, if established, fall outside the MIG, because the MIG only governs “minor injuries” and the definition does not include psychological impairments. To support her claim of psychological injury, the applicant relies on:

1. A psychological report by a psychologist, dated October 4, 2017, in which she was diagnosed with adjustment disorder with mixed anxiety and depressed mood, specific situational phobia – motor vehicles, and somatic symptom disorder with persistent pain.
2. ii.   The OCF-18 prepared by Normed, dated August 15, 2016 in which the applicant’s complaints of flashbacks, sleep disruption and driving/passenger anxiety are noted, and psychological treatment recommended.

To rebut the applicant’s claim of psychological injury, The Co-Operators relies on:

1. A psychological IE report by dated October 21, 2016, which indicated no basis for a psychological diagnosis.
2. A second psychological IE report dated December 4, 2017, which indicated no basis for a psychological diagnosis.
3. Both IE assessors consider the applicant’s injuries to be governed by the MIG.

In reviewing the medical reports of both parties, it is immediately evident that all of them depend heavily on frank and forthright self-reporting by the applicant.  The medical conclusions in each are based in large part on the applicant’s answers in clinical interviews and to diagnostic test questions. The Adjudicator noted that in the IEs, the applicant’s statements in direct interviews contradicted information provided to her own medical practitioners and assessors and makes no explanation for the discrepancies in self-reporting in the different examinations.  She does not attack the veracity of the IE reports on her own statements. 

On this basis the Adjudicator was confident in giving the IE reports substantial weight in determining how the applicant’s self-reporting speaks to her claims of psychological impairment, and that the applicant’s claim of psychological injury arising from the accident is not credible based on her self-reporting to IE assessors.

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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.