MIG and Chronic Pain - Aviva Canada Inc. and Maverick Sleep

January 27, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Aviva Canada Inc. and Maverick Sleep

Date of Decision: July 10, 2018
Heard Before: Adjudicator Maggy Murray,

AVIVA CANADA INC. Appellant
and
MAVERICK SLEEP Respondent

MIG: Does chronic back pain remove respondent from MIG; are chronic pain complaints separate from the minor injury complaint

Under section 283 of the Insurance Act, R.S.O. 1990 it is ordered that:

1. The appeal of the Arbitrator's Order of May 1, 2017 is allowed in full.  Paragraphs 1 and 2 of the Arbitrator's order are revoked, and the following substituted:
   1. Mr. Sleep’s injuries fall within the Minor Injury Guideline as defined in s. 3(1) of the Schedule;
   2. If the parties are unable to agree on the entitlement to, or quantum of the arbitration expenses of this matter, the parties may request an appointment for determination of them in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
2. Before the appeal, the parties agreed that the successful party to the appeal would be entitled to $5,000.00 inclusive of disbursements and HST.  Mr. Sleep shall pay Aviva Canada Inc. its legal expenses of the appeal proceedings herein, in the amount of $5,000.00, inclusive of disbursements, HST.

Nature of Appeal

Aviva Canada appeals the order of Arbitrator Anschell dated May 1, 2017, wherein she found that Mr. Sleep’s injuries did not fall within the Minor Injury Guideline (MIG) and awarded him expenses of the hearing. For the reasons set out below, the appeal is allowed.

II. BACKGROUND

Mr. Sleep was 15 when he was involved in an accident on March 26, 2014.  Mr. Sleep began experiencing back pain within a few days of the accident.  The Arbitrator found Mr. Sleep credible and accepted the opinion of the orthopaedic surgeon that Mr. Sleep developed chronic mechanical problems with regard to his back.  The Arbitrator concluded that “Mr. Sleep's ongoing sharp back pain does not constitute a "minor injury" as defined in s. 3(1) of the Schedule. A chronic pain diagnosis a few years post-accident establishes a severity beyond that contemplated by the Minor Injury Guideline.” Consequently, the Arbitrator found that the diagnosis of chronic pain took Mr. Sleep out of the MIG.

III. ANALYSIS

Aviva’s primary ground of appeal is that Mr. Sleep’s injuries fall within the MIG. A minor injury is defined in s. 3(1) of the Schedule as one or more of a:  “sprain, strain, whiplash associated disorder, contusion, abrasion …, and includes any clinically associated sequelae to such an injury.” Sequelae is defined as:  “an aftereffect of a disease, condition, or injury; a secondary result.”

Section 18(1) of the Schedule provides that if a claimant’s injuries fall within s. 3(1) of the Schedule and are “predominantly a minor injury,” the claimant can only receive up to $3,500 for their medical treatment. 

Therefore, an Arbitrator must first consider a claimant’s injuries and determine whether they are within the MIG.  If the injuries are within the MIG, an Arbitrator must then consider whether the claimant’s injuries are a “clinically associated sequelae” of a claimant’s minor injury.  In Mr. Sleep’s case, the Arbitrator did not analyze whether Mr. Sleep’s complaints of chronic pain were separate from the minor injury complaints, and that is an error of law.

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.

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