Injuries fall within MIG and notices of denial are correct - Applicant v Security - 16-003024 v Security

October 24, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v Security - 16-003024 v Security National Insurance Company, 2017 CanLII 62185 (ON LAT)

Date of Decision: August 11, 2017
Heard Before: Adjudicator Louise Bélanger-Hardy

MIG: Applicants injuries fall within the MIG; respondent’s letters of denial of benefits were sent within correct timeframe and contained correct information

The Applicant was in a single car accident on August 7, 2013, while driving a car along a street where under construction. He hit an obstacle and the vehicle’s airbags deployed hitting him in the face, hands and arms.  The applicant, who is a high school teacher who specializes in technological studies, returned to work full time as scheduled in September 2013. The applicant also does restoration work of churches and other buildings.

The day after the accident, the applicant consulted his family physician. In the months that followed, he received physiotherapy treatments. He was also followed by his family dentist, and was referred to another dentist who examined him in January 2016.  The applicant’s treatments were covered by his extended health coverage with Green Shield.

In August 2015, the applicant made his first application for accident benefits with Security and in November or early December 2015, he submitted a Treatment and Assessment Plan for an occupational therapy assessment. Security denied the plan in a letter dated December 15, 2015, but the assessment nevertheless took place and an occupational therapist completed her report in March 2016.

On December 12, 2015, the applicant submitted a Disability Certificate signed by his family physician listing the injuries resulting from the accident as neck strain, jaw strain, bilateral wrist strain and bilateral shoulder strain. The applicant submitted a second Treatment and Assessment Plan in February 2016 which Security denied in a letter dated March 16, 2016. The denial letter specified that insurer’s examinations were required. The applicant was therefore assessed by a general practitioner and by a psychologist.

In the IE dated July 25, 2016, the GP diagnosed the applicant with neck- strain resolved, face contusion; temporal mandibular dysfunction and bilateral arm strain. He concluded that the injuries met the criteria of minor injuries as defined in the Minor Injury Guideline. The psychologist noted that the applicant had reported experiencing “subclinical symptoms related to an adjustment disorder, that is, some feelings of frustration, as a result of the index accident”, but that the symptoms did not “appear to be sufficiently severe to warrant making a psychological diagnosis”. He concluded that “from a psychological perspective” the accident related symptoms, such as frustration, met the criteria of minor injury.  On August 18, 2016, Security sent a final denial letter to the applicant confirming the insurer’s position that the injuries sustained fell under the Minor Injury Guideline, based on the conclusions of the two insurer’s examiners.

The applicant applied to the LAT.

Issues:

1. Did the applicant suffer predominantly minor injuries as a result of the August 7, 2013 motor vehicle accident?
2.  If the applicant’s injuries fall outside of the MIG, is he entitled to the following treatment plans for medical benefits?

• $2,486.00 for Occupational Therapy Services pursuant to a Treatment and Assessment Plan dated November 27, 2015?
• $1,356.00 pursuant to a Treatment and Assessment Plan dated February 9, 2016?

 In his submissions, the applicant raises an additional issue. He submits that Security’s letters of denial dated December 15, 2015, March 16, 2016 and August 18, 2016 did not comply with the notice provisions outlined in section 38(8) of the Schedule. Consequently, based on section 38(11) of the Schedule, the applicant submits that Security is prohibited from taking the position that the applicant had an impairment to which the MIG applies.

Decision:

1. Security’s denial letters meet the requirements of sections 38(8) of the Schedule;
2. the applicant’s impairment is predominantly a minor injury to which the MIG applies and is subject to the $3,500 limit set out in the Schedule;
3. the medical benefit in the amount of $2,486.00 for Occupational Therapy Services is not payable;

The Adjudicator reviewed the law regarding notification requirements and determined that regarding both the December 15, 2015 and the March 16, 2016 denial letters both followed the 10 business days’ time limit set out in section 38(8). The Adjudicator found the December 15, 2015 denial letter made it clear to the applicant that the claim was denied based on the MIG. Security provided a reason for the denial including the fact there was no medical evidence as such to support the applicant’s claim. In the Adjudicator’s opinion, in the circumstances of this case, the denial notice meets the notice requirements of section 38(8). The Adjudicator noted that in the March 16, 2016 denial letter, the insurer focused on income replacement benefits (IRB), while, in its submissions, the applicant focusses on medical benefits. There appears to be confusion about what the February 9 Plan was all about.

The claim for a “work site assessment” was linked by the insurer to a possible claim for IRBs (for which no information has been provided to me). The Adjudicator noted that section 38(8) does not apply to IRBs, but only to medical or rehabilitation benefits, and was unable to determine from the evidence before me why there was confusion about the nature of the claim. A clerical error or oversight appears to be the cause. In such circumstances, the Adjudicator was not prepared to conclude Security failed to comply with the notice requirements found in section 38(8).

Finally, the August 18, 2016 denial letter made it clear to the applicant that the claim was denied based on the MIG and provided reasons for the denial by referring to the medical opinions. In the Adjudicators opinion, in the circumstances of this case, the denial letter meets the notice requirements of section 38(8).

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.