Applicant's injuries fall into the MIG - 17-005008 and Certas Home and Auto Insurance Company, 2018 CanLII 13141 (ON LAT)

June 03, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

17-005008 and Certas Home and Auto Insurance Company, 2018 CanLII 13141 (ON LAT)

Date of Decision: March 6, 2018
Heard Before: Adjudicator Stephanie Kepman

MIG: applicant's injuries fall within MIG; applicant fails to provide evidence of pre-existing injuries; applicant fails to provide evidence that injuries fall outside MIG

The applicant was injured in a car accident on July 8, 2015 and suffered injuries to her wrist, knee, elbow and back. The applicant applied for medical benefits pursuant to the SABs that were denied by Certas because she was placed into the MIG. She applied to the LAT for disputed resolution.

Issues:

1. Are the applicant’s injuries, specifically a spasm in the lumbar spine, primarily of a minor nature, as defined under the Schedule?
2. Is the applicant entitled to receive a medical benefit in the amount of $4,436.75 for chiropractic treatment in a treatment plan dated December 3, 2015?
3. Is the applicant entitled to interest on the overdue payment of benefits?

RESULT

1. The applicant sustained predominantly minor injuries as defined under the Schedule.
2. The applicant is not entitled to receive a medical benefit in the amount of $4,436.75 for chiropractic treatment.
3. The applicant is not entitled to interest on the overdue payment of benefits.

The MIG establishes a framework for the treatment of minor injuries. 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 insured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, the insured 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 insured person from achieving maximal recovery if benefits are limited to the MIG cap.

Certas submitted the decision of Scarlett v. Belair that the onus of establishing entitlement beyond the cap rests with the claimant.

The applicant’s Chiropractor submitted a Treatment and Assessment Plan (OCF-18) dated December 3, 2015. As part of the plan, the applicant had a lumbar spine x-ray performed on July 13, 2015.  The x-ray indicated that the Applicant did show spasms in the lumbar spine.

The applicant must demonstrate that the spasm in the lumbar spine does not fall within the definition of a minor injury as defined in section 3 of the Schedule. This definition does not specifically include any form of the word “spasm” or any of its synonyms. However, it does include the term “any clinically associated sequelae to such an injury”.

The threshold for demonstrating that the lumbar spasm falls beyond the umbrella for “any clinically associated sequelae to such an injury” can be found in LAT 16-000438 v The Personal. That decision states that in order for an applicant to be removed from the MIG on the basis of chronic pain, they must prove on a balance of probabilities that they did not sustain a predominantly minor injury and that the pain experience is not just sequelae from the minor injuries. The decision goes on to state that the pain must cause suffering and distress with a functional impairment or disability.

The Adjudicator reviewed the evidence and found that the applicant has failed to provide any medical evidence of the applicant demonstrating that she sustained pain that caused suffering and distress with a functional impairment or disability.  She states in her personal affidavit that she was told by an unnamed chiropractor at Reddy’s Physio that her spine was misaligned because of the impact of the car accident. However, absent an official diagnosis or other supportive medical proof, her claim of spinal misalignment cannot be taken as medical evidence supporting her claim. The applicant has failed to introduce any evidence that she has experienced anything beyond a minor injury.

The applicant has not argued that that there are any pre-existing conditions or psychological impairments that would exclude her from the MIG.

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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.