Insured Fails Onus Of Proof of Pre-existing Condition

January 27, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

M.M. v Wawanesa Mutual Insurance Company- Minor Injury Guidelines (MIGs); Pre-existing injury; benefit cap; onus of proof on plaintiff

M.M. v Wawanesa Mutual Insurance Company

Date of Decision:  December 6, 2016
Heard Before: Adjudicator Anna Truong

M. M.  was in a car accident on October 23, 2013, and sought benefits pursuant to the SABs.  M.M. applied for a neuropsychological assessment and chiropractic treatment, but was denied, because she was placed into the Minor Injury Guideline (the “MIG”) and had exhausted the $3,500 statutory limit. M.M. disagreed with this decision and submitted an application for dispute resolution services to the LAT.”). The matter proceeded to a case conference, but the parties were unable to resolve the issues in dispute.

ISSUES TO BE DECIDED

1. Did M.M. sustain predominately minor injuries as defined under the Schedule?
2. If the answer to issue one is no:
   1. Is M.M. entitled to the cost of a neuropsychological assessment as outlined in the Treatment and Assessment Plan (OCF-18) dated June 7, 2014?
   2. Is M.M. entitled to a medical benefit as outlined in the Treatment and Assessment Plan (OCF-18) dated December 30, 2015?

RESULT

Based on the totality of the evidence the Arbitrator concluded that:

1. M.M. sustained predominately minor injuries as defined under the Schedule.
2. Since the answer to issue one is yes:
   1. M.M. is not entitled to the cost of a neuropsychological assessment.
   2. M.M. is not entitled to a medical benefit..

ANALYSIS

The Arbitrator examined the applicability of the Minor Injury Guidelines (MIG) and applicable definitions.  The Schedule limits recovery for medical and rehabilitation benefits for such injuries to $3,500.The Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits,  compelling evidence of the pre-existing medical condition must be provided and it must be shown that it will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.

The Arbitrator noted that M.M. must establish her entitlement to coverage beyond the $3,500 cap for minor injuries.

The only evidence submitted by the parties is documentary evidence including  a Disability Certificate dated March 31, 2015, indicating M.M. suffered from neck strain/whiplash, lower back pain, difficulty with mental processing/thought process, and short term memory as a result of the accident. This OCF-3 is dated almost a year and a half after the accident and does not indicate that M.M. sustained any injuries other than minor injuries.

M.M.’s treating chiropractor submitted a Treatment Confirmation Form (OCF-23) which confirms that M.M.’s injuries fall within the MIG and she sustained whiplash associated disorder (WAD) I as well as dislocation, sprain and strain of joints and ligaments, of her lumbar spine, pelvis and thorax as a result of the indexed accident.  An independent Chiropractic Assessment by another chiropractor, concluded that M.M.’s injuries are consistent with a minor injury.

M.M. submits that her neurosymptomology falls outside the MIG. M.M.’s treating psychologist recommends neuropsychological assessment, but does not state that these symptoms prevent M.M. from recovering under the MIG, nor do records indicate that M.M.’s neurosymptomology falls outside of the MIG, nor do they indicate that M.M. sustained anything other than minor injuries as a result of the indexed accident.

None of M.M.’s treating physicians or independent assessors are of the opinion that M.M.’s injuries sustained in the indexed accident fall outside the MIG. Based on the evidence, the Arbitrator concluded that M.M. sustained predominately minor injuries, as defined under the Schedule, as a result of the indexed accident. Having found that, the Arbitrator then considered if there is compelling evidence that M.M. suffered from a pre-existing condition, documented by a healthcare practitioner before the accident, which prevents her from achieving maximal recovery under the MIG.

Pre-existing Conditions

In M.M.’s submissions, she argues that she has pre-existing medical conditions that prevent her from achieving maximal recovery under the MIG. However, M.M. does not specify which specific pre-existing conditions prevent her from recovery and how these conditions prevent her from recovery under the MIG. The presence of a pre-existing condition alone is not sufficient to remove M.M. from the MIG. M.M. must adduce evidence to demonstrate that these pre-existing conditions prevent her from achieving maximal recovery within the MIG. M.M. did not point to any evidence that demonstrates this.

Based on the evidence the Arbitrator found that M.M. has failed to satisfy her onus to show that there is compelling evidence that she cannot achieve maximal recovery within the MIG because of a pre-existing medical condition.

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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.