Injuries fall within MIG - Tribunal File Number: 16-001517/AABS

May 14, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: March 28, 2017
Heard Before: Adjudicator Sandeep Johal

Entitlement to benefits: MIG? Do injuries fall outside of MIG? Injires fall squarely within MIG guidelines

B.W. was injured in a car accident on August 29, 2013 and sought benefits pursuant to the SABs. He then submitted and application for dispute resolution to the LAT.

ISSUES TO BE DECIDED

1. Did B.W. sustain predominately minor injuries as defined under the Schedule?
2. Is B.W. entitled to receive a medical benefit in the amount of $1,304.00 for assistive devices?
3. Is B.W. entitled to receive a medical benefit in the amount of $1,752.00 for chiropractic treatment?
4. Is B.W. entitled to receive a medical benefit in the amount of $1,752.00 for chiropractic treatment?
5. Is B.W. entitled to receive a medical benefit in the amount of $1,819.30 for assistive devices?
6. Is B.W. entitled to payments for the cost of examinations in the amount of $2,000.00 for a psychological assessment?
7. Is B.W. entitled to interest on any overdue payment of benefits?

RESULT

The Adjudicator determined that there were three questions to be answered:

1. Are B.W.’s injuries predominately minor as defined under the Schedule?  The Adjudicator determined yes.
2. Does B.W. have a pre-existing condition that would prevent recovery under the Minor Injury Guideline (“MIG”)?  The Adjudicator determined that he does not.
3. Did B.W. suffer a psychological impairment as a result of the accident that would take him out of the MIG? The Adjudicator concluded that he does not.

Given that B.W.’s injuries are within the MIG it unnecessary to consider the reasonableness and necessity of the treatment plans or the issue of interest.

Analysis:

The MIG establishes a framework for the treatment of minor injuries.  Section 18(1) 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.  Section 18(2) of the Schedule makes provision for injured persons, who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap.  To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, and that will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.

The Adjudicator reviewed the law and the evidence. He noted that the onus of establishing entitlement beyond the MIG limits rests with the claimant.  Applying Scarlett, B.W. must establish his entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.

Since the accident B.W. has received treatment.  To date he has used $3,500 in medical and rehabilitation benefits.

A thorough review of the medical evidence led to the Adjudicator’s finding that B.W. sustained predominately minor injuries, as defined under the Schedule, as a result of the motor vehicle accident.

Pre-existing Conditions

In B.W.’s submissions, he states that he was suffering from severe anxiety, depressive disorder and panic attacks prior to the accident and these diagnosed conditions have been further exacerbated by the accident. In B.W.’s Examination Under Oath (the “EUO”) dated November 13, 2013, the only reference to a pre-existing injury is to his left shoulder which required surgery and physiotherapy. Medical evidence indicates successful shoulder surgery with no more ongoing shoulder problems.

The Arbitrator noted that the presence of pre-existing conditions alone is not sufficient to remove B.W. from the MIG.  B.W. bears the onus and must adduce evidence to demonstrate that the pre-existing condition prevents him from achieving maximal recovery within the MIG.  B.W. did not point  to any evidence that demonstrates this.

The Adjudicator reviewed some conflicting evidence regarding conflicting evidence with respect to whether B.W. has suffered a psychological impairment. On analysis of the evidence the Adjudicator concluded that B.W. does not suffer from a psychological impairment. 

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.