Insured's Injuries Do Not Fall Outside MIG - IRB Denied

March 19, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

AP v Aviva Canada – MIG; car accident; IRBs test for entitlement; do injuries fall within the MIG?

AP v Aviva Canada, 16-000045

Date:    September 1, 2016
Heard Before: D. Gregory Flude, Vice-Chair

REASONS FOR DECISION

Overview

AP was injured in a car crash on March 19, 2015, and applied for and received benefits under the Schedule including medical and Income Replacement Benefits (IRB). Aviva terminated her IRB on February 16, 2016 taking the position that she did not meet the test for entitlement. She disputes that termination and argues that she should be paid IRB from February 17 to May 3, 2016 when she started part-time work.

Aviva also denied AP’s claim for medical benefits for physiotherapy and chiropractic treatment. The dispute over the medical benefit centres on the nature and extent of her injuries. AP submits that her injuries are extensive and that she is entitled to access a maximum of $50,000 of medical and rehabilitation benefits pursuant to the Schedule. Aviva takes the position that her injuries are predominately minor and that s. 18(1) caps medical and rehabilitation benefits at $3,500 for predominantly minor injuries. The $3,500 having been exhausted, Aviva takes the position that it has no further liability to AP. The resolution of this matter depends on the sufficiency of the medical evidence put forward by AP in support of her position.

Issues:

1. Did AP suffer predominantly minor injuries in the March 19, 2015 motor vehicle accident?
2. If the answer to question 1. above is no,
   1. Is Aviva liable to pay the following medical benefits:

• $1,133.73 for a Physiotherapy Treatment and Assessment Plan dated June 17, 2015, and
• $32.87 for the balance of a Chiropractic Treatment and Assessment Plan dated June 17, 2015.

1. Is AP entitled to the payment of IRB at the rate of $382.55 per week for the period from February 17, 2016 to May 3, 2016?

Result:

1. AP suffered predominantly minor injuries. There is no compelling evidence of a pre-existing medical condition preventing AP from recovering within the minor injury treatment cost limits, and
2. AP is not entitled to the payment of IRB for the period from February 17, 2016 to May 3, 2016.

The Minor Injury Issue:

The Minor Injury Guideline (“MIG”) establishes a framework for the treatment of soft tissue injuries. The term “minor injury” is defined extensively in the Schedule and the Arbitrator referred to them collectively as “soft tissue 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.

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, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.

The Arbitrator reviewed recent decisions and determined that the onus of establishing entitlement to a higher level of coverage than the $3,500 for minor injuries rests wholly on the claimant. The Arbitrator then reviewed all the evidence presented by both parties, and could find no evidence that AP suffered anything other than soft tissue injuries.

The Arbitrator was then left to determine if there is compelling evidence that AP suffered from a pre-existing condition, documented by a healthcare practitioner before the accident, preventing her from achieving maximal recovery if subjected to the $3,500 limit.

Is There Evidence of Pre-Existing Medical Condition?

There is evidence that AP was involved in a motor vehicle accident in 2005 in which she suffered similar cervical spine injuries, but upon reviewing the medical evidence the Arbitrator concluded that AP has failed to satisfy her onus to show there is compelling evidence that she cannot achieve maximal recovery within the MIG because of a pre-existing medical condition.

Does AP Suffer from Chronic Pain Syndrome?

AP takes the position that she suffers from Chronic Pain Syndrome and therefore falls outside the MIG notwithstanding that her initial injuries were soft tissue injuries. There is no medical evidence to support AP’s claim that she is suffering from Chronic Pain Syndrome.

Income Replacement Benefits:

In AP ’s case, she is entitled to IRB if, as a result of the accident, she suffers a substantial inability to perform the essential tasks of her pre-accident employment as a medical secretary. AP’s family doctor, submitted a Disability Certificate (OCF-3) dated September 9, 2015 and ticked the box to say that, for a period in excess of the next 12 weeks, AP was incapable of performing her job. Based on the OCF-3 Aviva began payment of the IRB and continued until February 16, 2016 when it stopped payment following receipt of a Multidisciplinary Insurer’s Examination (IE) report dated January 21, 2016. Other than the September 9, 2015 OCF-3 stating that she was unable to perform the essential tasks of her employment for a period in excess of 12 weeks, AP led no further evidence about her inability to work.

In December 2015 and January 2016, AP attended the IE assessment. A Registered Occupational Therapist examined her and after testing AP for in excess of two and a half hours, Mr. Welch concluded that she could carry out “sedentary work.” His report details the specifics of each test together with his findings and reasons for his conclusions.

On January 8, 2016, an orthopaedic surgeon examined AP, and noted that AP was still suffering pain because of the accident but concluded that she did not suffer a substantial inability to return to her pre-accident duties as a medical secretary.

AP submits that the Arbitrator should accept her doctor’s determination over the determination of Aviva’s assessors. Aviva submits AP’s doctor simply ticked a box and has provided no further support for her methodology or conclusions. Aviva’s assessors, on the other hand, have provided a detailed report on both their methodology and their conclusions that is unchallenged by anything submitted by AP. The evidence currently overwhelmingly supports the conclusion that AP was able to perform the essential tasks of her employment by February 16, 2016 when the IRB payment was stopped.

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.