Applicant v Wawanesa, 2018 CanLII 13146 ON LAT 17-000565

May 16, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v Wawanesa, 2018 CanLII 13146 ON LAT 17-000565

Date of Decision: January 29, 2018
Heard Before: Adjudicator Billeh Hamud

MEDICAL TREATMENT: does applicant fall outside the MIG; social media and surveillance show applicant not truthful about limitations and injuries; applicant not credible;

The applicant was injured in a car accident on August 22, 2014 and sought benefits pursuant SABs for several treatment and assessment plans and payment for examinations. When Wawnesa denied the plans on the basis that the applicant’s injuries were predominately in the MIG the applicant submitted an application for dispute resolution services to the LAT.

Issues:

1. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, subject to treatment within the MIG?
2. Is the applicant entitled to receive a medical benefit for the following:
   1. $1,008.01 for massage therapy July 20, 2015
   2. $1,008.01 for massage therapy in a treatment plan dated May 5, 2015
   3. $261.48 for prescriptions submitted on May 6, 2015
3. Is the applicant entitled to payment for the following examinations:
   1. $2,184.93 for a psychological assessment submitted on February 3, 2015
   2. $2,776.40 for a neurological assessment submitted on April 4, 2016
   3. $2,663.40 for a chronic pain assessment submitted on November 11, 2016
4. Is the applicant entitled to interest for the overdue payment of benefits?

RESULT:

1. The applicant’s injuries are predominately minor as defined by the Schedule and subject to treatment within the MIG.

Are the applicant’s injuries within the Minor Injury Guideline?

The Adjudicator reviewed the law and the evidence. The onus is on the applicant to show that their injuries fall outside the MIG. 

The applicant submits that his injuries fall outside of the MIG, and that he suffers from several physical and psychological injuries as a result of the accident. The applicant relies on his chronic pain specialist pain assessment. Specifically a diagnosis of post-concussion syndrome, chronic post-traumatic headache, and chronic pain to several parts of his body. The applicant also relies on his psychologist, and his psychological assessment providing diagnosis of chronic adjustment disorder, predominant pain and mild traumatic brain injury. Both specialists opined that the applicant’s injuries fall outside of the MIG.

Wawnesa submits that the applicant’s injuries are predominately minor and the applicant’s evidence is not credible because surveillance of the applicant and social media evidence of the applicant directly contradict his alleged functional abilities. Wawnesa also relies on IEs that conclude the applicant’s injuries were uncomplicated soft-tissue injuries, a neurological assessor concluding that headaches were “tension type” stemming from his soft tissue injuries, and an psychological assessor finding that scores on anxiety and depression were in the average range and the applicant admitted he had no interest in pursuing psychologist treatment. The psychological IE concluded that the applicant did not have any diagnosable psychological disorder.

The medical reports submitted by the applicant rely heavily upon his self-report of physical and psychological difficulties to the health practitioners. The credibility of the applicant’s medical reports is strongly tied to the applicant’s credibility.  The Adjudicator reviewed the surveillance video and social media information and found the surveillance and photographs raise significant questions about the applicant’s credibility. The applicant was also less than truthful about past medical issues. As a result the Adjudicator placed minimal weight on the applicant’s self-report of his injuries.

On review of the evidence the Adjudicator noted the injuries sustained by the applicant can be categorized into two groups – physical injuries and psychological injuries. If the applicant’s evidence and submissions fail to prove on a balance of probabilities that his injuries are not predominately minor, the analysis is over. The Adjudicator found the applicant’s injuries are predominately minor and subject to the treatment cap of $3,500.00 under 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.