Pre-existing injuries remove applicant from MIG - IA v Unifund Claims Inc, LAT 17-000785

December 09, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

IA v Unifund Claims Inc, LAT 17-000785 2017 CanLII 77346 (ON LAT)

Decision Date: 2017-11-09
Heard Before: Adjudicator Billeh Hamud

MIG and ENTITLEMENT TO BENEFITS: applicant proves injuries fall outside MIG; pre-existing  worsenedcar accident injuries require further treatment

IA was injured in a car accident on August 2, 2013 and sought SABs from Unifund. When the benefits were denied IA submitted an application for dispute to the LAT.

Preliminary Issue:

Is IA beyond the limitation period for filing an application regarding a medical benefit claim for $2,850.00 for chiropractic services as set out in issue #2 below?

 Issues:

1. Are IA’s injuries predominantly minor injuries as defined in the Schedule subject to a treatment cap of $3,500.00 and to treatment within the Minor Injury Guideline (the “MIG”)?
2. Is IA entitled to receive a medical benefit in the amount of $2,850.00 for chiropractic services in a treatment plan dated January 7, 2014?
3. Is IA entitled to receive medical benefits in the amounts of:
   1. $3,690 for chiropractic services in a treatment plan submitted September 23, 2016?
   2. $3,300 for chiropractic services in a treatment plan submitted October 14, 2016?
4. Is IA entitled to payments for the cost of examinations in the amount of $2,846.00 for a psychological assessments in a treatment plan dated April 14, 2016?
5. Is IA entitled to payments for the cost of examinations in the amount of $2,709.94 for a chronic pain assessment in a treatment plan dated April 14, 2016?
6. Is IA entitled to interest on overdue payments from the respondent?

RESULT:

1. IA is beyond the limitation period set out in the Schedule. Accordingly, issue (ii) is dismissed.
2. IA’s injuries to be beyond the definition of “minor injury” as noted in the Schedule, and IA had a pre-existing condition from a previous accident in 2011 which would prevent IA from achieving maximal recovery within the MIG following his subsequent motor vehicle accident in 2013.
3. IA is entitled to receive medical benefits and payment for the cost of examinations as noted in issue (iii), (iv) and (v).
4. IA is also entitled to interest as noted in issue (vi), but only with respect to the chronic pain assessment and the psychological assessment.

ANALYSIS:

Preliminary Issue: Limitation Period

Section 56 of the Schedule states: “An application under subsection 280 (2) of the Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed”

There is no dispute that the respondent denied the treatment plan in the amount of $2,850.00 for chiropractic services on July 24, 2014 and that notice to dispute the decision was provided to IA on the same day. However, IA submits that the limitation period should not apply because he filed an application for mediation with the Financial Services Commission of Ontario (FSCO) on March 15, 2016, two months before the statutory notice period ended, and that the file was “arbitrarily closed” by FSCO on May 27, 2016.

The Adjudicator found no reasonable explanation has been provided by IA to waive the two year limitation period and issue #2 is dismissed because it was disputed beyond the two-year limitation period pursuant to section 56 of the Schedule.

Are IA’s injuries predominately minor injuries as defined in the Schedule?

The Schedule clearly defines Minor Injuries and Section 18(2) of the Schedule allows some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500.00 limit.

The Adjudicator found that the medical evidence submitted by IA supports his position that his injuries fall outside the MIG. The Adjudicator have also determined that IA’s injuries suffered in his previous car accident in 2011 was a pre-existing medical condition.

Based on the evidence before the Adjudicator found that IA has satisfied his onus to show that there is compelling evidence that he cannot achieve maximal recovery within the MIG because of a pre-existing medical condition.

Upon further review of all the medical evidence the Adjudicator found certain treatment plans reasonable and necessary.

Interest

IA is entitled to interest on the chronic pain assessment and psychological assessment only in accordance with the Schedule.

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.