Applicant's physical and psychological injuries remove him from MIG - 16-003821 v Co-operators General Insurance Company, 2018 CanLII 13192 (ON LAT)

May 14, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

16-003821 v Co-operators General Insurance Company, 2018 CanLII 13192 (ON LAT)

Date of Decision: February 14, 2018
Heard Before: Adjudicator Samia Makhamra

MIG and MEDICAL BENEFITS: applicant shows injuries are not predominantly minor; applicant’s benefits approved

The applicant seeks payment for a number of medical benefits that Co-operators denied on the basis the applicant suffered predominantly minor injuries as defined in the Schedule. The applicant disputes Co-operators’s position.

Issues:

1. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, subject to treatment within the MIG?
2. If the applicant’s injuries are found not to be predominantly minor, as defined in the Schedule, is the applicant entitled to receive payment for medical benefits for the following:
   1. $2,819.08 for chiropractic services set out in a treatment plan dated October 5, 2016;
   2. $1,300.00 for chiropractic services set out in a treatment plan dated April 25, 2016;
   3. $2,000.00 for a psychological assessment and report dated October 2, 2016; and
   4. $85.00 for a MIG discharge report (OCF-24) dated April 25, 2016.
3. Is the applicant entitled to interest for the overdue payment of benefits?

Result:

1. The applicant’s injuries are not predominantly minor as defined in the Schedule. The applicant is entitled to the medical benefits in dispute and interest for any overdue payment of benefits.

Facts:

The applicant was in a car accident on August 16, 2014 and saw a chiropractor shortly after the accident who completed a disability certificate where she indicated the applicant’s inability to carry on a normal life and listed the following injuries: injury of muscle and tendon at neck level; dislocation; sprain and strain of joints and ligaments of thorax, lumbar spine, pelvis and shoulder girdle; headaches; and phobic anxiety disorders.

The chiropractor submitted a treatment and assessment plan (OCF 23) on the same date, opining that the applicant’s injuries should not be in the MIG as they were unlikely to resolve within the time frame of the MIG.  The applicant did not have a family doctor at the time of the accident.  The applicant left the country in November 2014 for a family emergency. He returned to Canada in April 2016. The applicant states that he attended treatment while away.

In December 2014, Co-operators provided the remaining funds available under the MIG to the applicant to enable him to seek treatment while away. It also advised him that no further medical-rehabilitation benefits were payable.

As the applicant was out of the country for many months, Co-operators could not schedule s. 44 insurer’s examinations to address the issue of the applicability of the MIG until his return. The applicant resumed treatment when he returned to Canada. He sought a variety of treatments before attending any insurer’s examinations.

In February 2017, the applicant attended two s. 44 insurer’s examinations for a psychological assessment and for a physiatry. A multidisciplinary report concluded that the applicant’s injuries were predominantly minor was issued on February 23, 2017.

The applicant submits that he should not be in the MIG because of his psychological disorders and the compression fracture.

Co-operators argues that there is no objective evidence to rebut the compression fracture is incidental and unrelated to the accident. Further, there is no evidence that the fracture was caused by the accident, or that it is the cause of the applicant’s complaints.

Regarding the psychological argument, Co-operators asks the Tribunal to assign less weight to the applicant’s psychological assessment in light of the findings of its own assessor and because the applicant’s assessment was not properly before Co-operators to allow for a response, or to adjust the applicant’s claim accordingly. Co-operators further submits that the chiropractor’s opinion or diagnosis of a psychological condition should be disregarded as this is outside her scope of practice as a chiropractor.

The Adjudicator found that the compression fracture takes the applicant out of the MIG. The Adjudicator also found that the psychological diagnosis as noted by the applicant’s psychologist takes the applicant out of 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.