Man fails to provide evidence that injuries fall outside MIG - M.S. v Unifund Assurance Company LAT 16-001849

July 17, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

M.S. v Unifund Assurance Company LAT 16-001849

Date of Decision: June 5, 2017
Heard Before: Adjudicator Louise Bélanger-Hardy

NEBs: Did applicant prove his injuries outside of MIG? Did applicant prove injuries resulted in a complete inability to resume life as before accident?  Applicant fails to prove case.

MS was 70 years old at the time of the car accident and was the driver and sole occupant of the automobile. He did not attend at the hospital on the day of the accident. The day after the accident, MS attended at a walk-in clinic and a few days later, on October 29, 2013, he saw his family physician complaining of headaches, back, shoulders and neck pain. MS had a cardiac catheterization procedure on September 30, 2014 at Toronto Western Hospital and had triple bypass surgery in January 2015 at Toronto General Hospital. MS asserts that the heart problems addressed by these surgeries were exacerbated by the accident. Unifund disagrees.

There were a number of treatments by a physiotherapist. MS had applied for and received benefits from Unifund. MS claimed for a number of medical benefits and for payment of a non-earner benefit. Following an assessment by its own independent medical assessor, Unifund took the position that MS suffered predominantly minor injuries and therefore subject to a treatment cap of $3,500.00. MS disagrees with Unifund’s position.

Issues:

1. Is MS entitled to receive a non-earner benefit in the amount of $185.00 per week for the period from March 26, 2014 to June 7, 2016?
2. Do MS’s injuries fall within the Minor Injury Guideline (the MIG)?

Decision:

1. MS is not entitled to any of the benefits in dispute.

The Arbitrator reviewed the medical evidence and the applications for benefits in light of the Schedule. The Arbitrator noted MS submitted he was entitled to receive a NEB  in the amount of $185.00 per week. The onus is on MS to prove that he has “a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit”.

The Arbitrator reviewed the evidence submitted and the law. He reviewed the OCF-3s submitted by MS as well as the IE. The eligibility for non-earner benefits requires a comparison of MS’s activities and life circumstances before the accident to those after the accident. In this case MS has not provided sufficient evidence of the details of his pre-accident lifestyle and activities to establish his eligibility to the non-earner benefits.

The Arbitrator reviewed the case for the MIG. The Schedule limits benefits to $3500 when the impairment sustained is predominantly a minor injury except when the insured person “has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3.500 limit.” The Minor Injury Guideline specifies that “compelling evidence should be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner”.

The Arbitrator noted that to succeed in his application to be taken out of the MIG, MS must show that his injuries are not minor. The Arbitrator reviewed the evidence and found that MS has not proven his case and therefore, MS sustained an impairment that is predominantly a minor injury.

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.