Pre-existing condition not worsened by accident - Applicant and TD Insurance Meloche Monnex, 2018 CanLII 13142 ON LAT 17-000640

June 01, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and TD Insurance Meloche Monnex, 2018 CanLII 13142 ON LAT 17-000640

Date of Decision: February 14, 2018
Heard Before: Adjudicator Deborah Neilson

MIG and NEBs and MEDICAL BENEFITS: applicant fails to prove that injuries fall outside MIG; applicant fails to show that pre-existing medical conditions worsened by accident; claim denied

The applicant was injured in a car accident on June 7, 2013. He applied for accident benefits from TD Insurance, under to the SABs. When TD denied the benefits on the basis that the applicant’s injuries fall within the MIG the applicant applied to the LAT for payment of two treatment plans – one for medical benefits consisting of physiotherapy treatment and the other for a psychological assessment.

TD submts that the applicant is not entitled to NEBs because he is unable to prove on a balance of probabilities that he has a complete inability to carry on a normal life.

The applicant disagrees with TD’s denial of NEBs and its decision to deal with his treatment under the MIG. He claims that his injuries fall outside the MIG because he had pre-existing health conditions and because he developed chronic pain and psychological injuries as a result of the accident.

Issues:

a)     Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, subject to a cap of $3,500.00 and to treatment within the MIG?
b)     Is the applicant entitled to receive a medical benefit of $2,200.40 for physiotherapy services recommended in a treatment plan dated July 15, 2015?
c)     Is the applicant entitled to receive $2,200 for the cost of a psychology assessment recommended in a treatment plan dated April 5, 2016?
d)     Is the applicant entitled to receive NEBs of $185.00 per week from June 7, 2013 to date and ongoing?
e)     Is TD required under the Schedule to pay the applicant benefits withheld during the period the applicant failed to comply with TD’s request for information reasonably required to determine the applicant’s entitlement to a benefit?
f)      Is TD entitled to its costs of the hearing because the applicant has acted unreasonably, frivolously, vexatiously, or in bad faith?

At the outset of the hearing TD raised a procedural issue seeking an order that the applicant be precluded from relying on two reports for failure to serve the documents in accordance with the case conference Adjudicator’s Order.

Result

The Adjudicator admitted the reports as TD had copies of both of those reports prior to the time limit imposed by the case conference Adjudicator, the reports are relevant to the issues in dispute, and there was no prejudice to TD.

1. The applicant is not entitled to NEBs because he sustained predominantly minor injuries from the accident in accordance with the definition in the Schedule, and the MIG, therefore, applies to him.
2. As the applicant is not entitled to any accident benefits, there is no need to determine whether TD is required to pay any benefits withheld for the period of time the applicant failed to provide information requested by TD.

Procedural Issues

The case conference Adjudicator ordered that, 30 days before the hearing, the parties serve each other and file with the Tribunal the documents they intend to rely on at the hearing and a list of the witnesses they intend to call. The applicant failed to comply with the order. He did not serve and file his documents until 10 days before the hearing and did not serve a witness list. For this reason, TD sought an order that the applicant be precluded from relying on two reports, a report of the psychologist and a report of a social worker.

The Adjudicator rejected the applicant’s submission that his failure to comply with the case conference Adjudicator’s order should be excused because he was involved in settlement negotiations with TD. The applicant’s failure to properly prepare for the hearing and comply with the order shows a blatant disregard for the Tribunal’s authority.

The Adjudicator allowed the applicant to rely on the report of the psychologist as TD had notice from the applicant that he intended to rely on her report. The applicant stated his intention in his case conference summary. If TD had wanted to cross-examine her on her report, TD should have advised the applicant of its intention at the case conference.

The report of the social worker was more problematic. At the start of the hearing, the Adjudicator decided to exclude the report on the basis of TD’s submission that it was prejudiced for the following reasons:

1. it was completely unaware of the report until it was served 10 days prior to the hearing;
2. there were inconsistencies and questions raised by the report that could only be addressed by its experts; and
3. its experts had no opportunity to review and comment on the inconsistencies in the report.

It became apparent during the evidence in-chief of TD’s expert psychological witness that she had in fact received the social worker’s report from TD, reviewed it and commented on it in her own report. Accordingly, TD’s submissions were unfounded. For that reason the adjudicator reversed his decision to exclude the second report.

The applicant submits that he has a psychological injury and chronic pain and that either of those conditions takes him out of the MIG. The onus to prove his injuries fall outside the MIG falls on him.

On review of the evidence the Adjudicator found that the applicant has failed to prove he sustained more than predominantly soft tissue injuries in the accident. Although he has pre-accident medical conditions, he has not proven that those conditions will prevent him from achieving maximal medical recovery under the cap or the MIG.

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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.