Documented previous injuries underplayed in IE - applicant's injuries fall outside MIG - CW v Unifund - 16-003336 v Unifund

October 27, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

CW v Unifund - 16-003336 v Unifund Assurance Company, 2017 CanLII 56670 (ON LAT)

Date of Decision: August 4, 2017
Heard Before: Adjudicator Blaine Baker

MIG: documented pre-existing injuries; injuries downplayed by insurer; MIG not applied until 2 years post accident; applicant proves case

CW, 41, was injured in a “T-bone” car accident on February 7, 2014 and sought benefits under the SABs from Unifund. CW requested a “job demands analysis” that was submitted on July 28, 2016, which was denied by Unifund based on Unifund’s determination that CW suffered injuries which fell within the MIG.  CW disagreed with Unifund’s decision, and applied for dispute-resolution services to the LAT.

Issues:

1. Did CW suffer predominantly minor injuries, whose treatment falls within the MIG.
2. Is CW entitled to a medical benefit in the amount of $1,397.00 for a job demands analysis, less $694.49 of that amount, which Unifund approved as the remainder of CW’s MIG entitlement?
3. Is CW entitled to interest on overdue payment of benefits?

Result:

1. CW’s injuries were not predominately minor ones as defined by the Schedule.
2. CW is entitled to receive additional assessment and treatment by Modern OT to a maximum value of $702.51, as specified in an assessment and treatment plan submitted to Unifund on July 28, 2016.
3. CW is entitled to interest on that overdue payment of benefits.

The MIG establishes a framework for the treatment of minor injuries resulting from car accidents, clearly defining what injuries fall within the MIG, and the Schedule limits recovery for medical and rehabilitation benefits for soft tissue injuries to $3,500.00. Injured persons who have pre- existing medical conditions may receive treatment in excess of the MIG if their healthcare provider gives evidence that the previously documented pre-existing medical condition will prevent that person from achieving maximal recovery if benefits are limited by the MIG cap.

CW relied on a disability certificate prepared March 24, 2014, physiatrist’s reports prepared on May 8, 2015 and March 11, 2017, and on a report prepared by Occupational Therapist on July 28, 2016. CW was diagnosed with a  tear in her shoulder that was  more than a MIG soft tissue injury. It was emphasized a C7 nerve root condition,  diagnosed in 1999,  would prevent CW from achieving maximum recovery if he were limited to treatment authorized under the MIG. The Occupational Therapist also concluded that CW’s impairment was more than a MIG injury. For his part, CW scaled down post-accident self-employment in his plumbing business from six days to four days a week, and hired a helper to assist him with strenuous work.

It had been two years since the accident submitted the treatment plan in issue, and Unifund had treated CW’s file as “inactive”. Unifund had not denied anything prior to receiving this treatment plan, so had not had to determine whether CW was in or out of the MIG. However, that characterization of events downplays CW’s back and shoulder injuries, and the ongoing treatment that Unifund was funding for CW during the winter of 2015-16. Moreover, it contrasts with the updated diagnosis of March 11, 2017.

Unifund relied on opinions provided to it by orthopedic surgeon on February 14, 2017 and April 11, 2017, to the effect that CW’s injuries were soft tissue in nature and therefore minor, however these did not address in sufficient detail CW’s left shoulder injuries or his pre-existing back injuries that were emphasized by CW’s physician and physiatrist.

The Adjudicator reviewed the evidence and the law and found that CW has shown that he suffers from more than minor injuries as defined by the MIG, that he has a pre-existing medical condition, documented prior to the accident, which will prevent him from achieving maximal recovery under the MIG, and is therefore entitled to treatment valued beyond the MIG dollar limit, subject to the statutory prescription period that has now run in this case.

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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.