Applicant provides no evidence of claims falling outside of MIG or of pre-existing conditions - Applicant v Aviva LAT 17-003557

January 18, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v Aviva LAT 17-003557

Decision Date: November 22, 2017
Heard Before: Adjudicator Christopher A. Ferguson

MIG: Applicant provides no evidence of pre-existing injury; applicant provides no evidence of injuries falling outside the MIG; claim denied

The Applicant was involved in a car accident on May 25, 2016 and sought benefits pursuant to the SABs and applied to the LAT when Aviva denied the benefits.

Issues:

1. Are the injuries sustained by the applicant predominately minor as defined by section 3(1) of the Schedule?
2. Is the applicant entitled to receive a medical benefit in the amount of $4,652.42 for a physiotherapy treatment in a treatment plan dated August 23, 2016?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

1. The applicant’s injuries are predominantly minor as defined by the Schedule because:
   1. They fit the definition of minor injury prescribed by the Schedule; and
   2. There is no compelling evidence of a pre-existing medical condition that would remove the applicant from the MIG.
2. The applicant is not entitled to payment of the disputed medical benefit.
3. No interest is payable to her by Aviva.

Aviva argues that all of the applicant’s injuries fall within the MIG. The applicant’s position is exactly the opposite.

The applicant’s physical injuries are consistently reported by all of the medical experts as strains and sprains of the neck and back.

The Arbitrator reviewed the evidence and the law and determined that there is no evidence to support the contention that the applicant’s injuries fall outside the MIG, because:

1. The applicant’s family physician diagnosed whiplash and prescribed massage and painkillers: the diagnosis and treatment remained unchanged in clinical notes and records (CNRs) from May 26, 2016 to March 31, 2017, except for an addition of whiplash muscle spasm which was recorded as a result of x-rays taken August 6, 2016.
2. The Applicant’s family doctor ruled out herniated disc after reviewing x-rays in August 2016.
3. Diagnostic imaging of the applicant’s lumbar spine on August 6, 2016 revealed no abnormality.
4. Thoracic spine images taken the same day August 6, 2016 showed minimal idiopathic scoliosis “presumably due to muscular spasm”. The applicant submitted no medical evidence of how this condition would take her injuries out of the MIG.
5. An insurer examination on February 24, 2017 produced a diagnosis of soft tissue injury without clinical indications of neurological impairment – and an opinion that the applicant’s injuries fall within the MIG.
6. The IE addendum report of June 28, 2017, which he wrote after reviewing the applicant’s x-rays, maintained his earlier diagnosis and opinion.
7. The family doctor’s CNRs provide no support to the applicant’s claim to be suffering from severe headaches. CNRs from Physio Fix and Fitness include only one reference to headache on October 15, 2016 and a notation of significant improvement three days later.  No evidence has been produced to establish a causative link between the reported headache and the accident.

The applicant’s submissions are clear: her thoracic scoliosis was not medically documented before the accident, and the x-ray report of August 6, 2016 includes an opinion that it was presumably caused by muscle spasm, with no indication as to whether or not the condition was caused by the accident or was pre-existing.

The applicant’s submission on her pre-existing psychological condition of anxiety and depression is also unpersuasive because, in her appeal submission, she describes her problems as brief  and “overcome” in 2013; and she  failed to provide medical documentation of her history of anxiety and depression – a diagnosis is not drawn to my attention; her submission’s references to psychological “yellow flags” that were noted in the Physio Fix and Fitness progress report and treatment plan of August 23, 2016 speak more to a potential for stress-related psychological problems that might arise with no link made to her previous history and no evidence of how likely these problems are to arise.

The Arbitrator found on a balance of probabilities, that the applicant’s injuries fall within the MIG, with no pre-existing condition that meets the evidentiary test, it is not necessary e to determine whether the claimed treatment plan is reasonable and necessary.

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.