Pre-Existing Conditions Do Not Limit Recovery Under MIG

January 24, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v Aviva LAT 17-001939

Decision Date: January 11, 2017
Heard Before: Adjudicator Christopher A. Ferguson

MIG: applicant fails to show that recovery under MIG not attainable due to pre-existing psychological treatment

The applicant was involved in car accident on December 26, 2015, and sought benefits pursuant SABs. When they were denied the applicant applied to the LAT.

Issues:

1. Do the Applicant’s injuries fall within the MIG?
2. Is the applicant entitled to the cost of an in-home assessment examination for $2,248.90 submitted March 15, 2016?
3. Is the applicant entitled to a NEBs in the amount of $185.00 weekly submitted February 2, 2016?
4. Is the applicant entitled to interest on any overdue payments from Aviva?
5. Is Aviva liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

Results:

1. The applicant’s injuries fall within the MIG.
2. The applicant’s claim for an in-home assessment examination is denied.
3. The applicant has not proven her entitlement to NEBs.

Aviva argues that all of the applicant’s injuries fit the MIG as prescribed by the Schedule, and therefore, fall within the MIG. The applicant’s position is exactly the opposite. Section 3(1) of the Schedule defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, and includes any clinically associated sequelae to such an injury.”

The applicant’s submission refers to psychological injuries and chronic pain, but provides no evidence of any diagnosis of any such disorders.  Accordingly, no case for removal from the MIG has been proven. All of the physical injuries described in the applicant’s submissions fall within the MIG. She does not argue otherwise. Her claim is based on pre-existing conditions.

The applicant claims that pre-existing medical conditions, namely diabetes, arthritis of the knee and obesity, make her recovery within the limits imposed by the MIG impracticable. The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict.  A pre-existing condition will not automatically exclude a person’s impairment from the MIG.

The MIG expressly states that exclusions on the basis of pre-existing conditions are expected to be made “in extremely limited circumstances” and that granting such exclusions on any evidence that falls short of the prescribed “compelling standard” is “inconsistent with the intent of the Schedule and the MIG”. It requires compelling evidence to be provided using the Treatment and Assessment Plan (“OCF-18”) with

On the basis of the evidence provided and in the framework of this strict standard of interpretation the Arbitrator found that the applicant has failed to prove her contention that she had pre-existing conditions that would take her outside of the MIG. 

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.