Pre-existing Injury Undiagnosed – Applicant Remains in MIG

April 05, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

16-001387 v Aviva: Minor Injury Guideline; MIG; pre-existing conditions worsened; pre-existing condition had not been previously identified by a medical practitioner so claim for extension of benefits out of the MIG fails.

Date of Decision: February 13, 2017
Heard Before: Adjudicator D. Gregory Flude, Vice-Chair

The applicant was injured in a car accident on June 13, 2012. He applied for a number of medical and rehabilitation benefits under the SABS but Aviva has denied the benefits, taking the position that the applicant’s injuries are predominantly minor in nature and, pursuant to the Schedule, subject to a cap of $3,500.00 for medical and rehabilitation benefits.

The applicant claims several treatment plans. Aviva chose not to address whether any individual treatment was reasonable and necessary. It took the position that the applicant had suffered predominantly minor injuries and that the maximum payable for medical and rehabilitation benefits is capped by the Schedule at $3,500.00. That amount having been exhausted, Aviva takes the position that the applicant is not entitled to payment for any further medical and rehabilitation benefits.

The Arbitrator noted he would focus will be on the scope of the applicant’s injuries. After reviewing and considering the evidence, the Arbitrator agreed that the applicant has suffered predominantly minor injuries.  

ISSUES

1. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to a cap of $3,500.00 for medical and rehabilitation benefits?
2. Is the applicant entitled to receive a medical benefit in the amount of $3,407.24 for chiropractic services?
3. Is the applicant entitled to receive a medical benefit in the amount of $1,800.00 for a customized back brace?
4. Is the applicant entitled to receive a medical benefit in the amount of $4,732.00 for medical services?
5. Is the applicant entitled to payments for the cost of examinations in the amount of $2,369.01 for a chronic pain assessment?
6. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for an orthopaedic assessment?
7. Is the applicant entitled to receive a medical benefit in the amount of $2,303.57 for shiatsu services?
8. Is the applicant entitled to payments of $641.25 for the cost of completion of an OCF-18?
9. Is the applicant entitled to interest on any overdue payment of benefits?

Analysis

The Arbitrator noted that Section 3 of the Schedule defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” S. 18 (1) caps recovery for predominantly minor injuries at $3,500.00. Treatment for minor injuries follows a treatment framework set out in a document called the Minor Injury Guideline (MIG). As a result, people with minor injuries are often referred to as being in the MIG. The limit of liability can only be exceeded if a healthcare practitioner provides compelling evidence that the applicant has a pre-existing condition documented by a healthcare practitioner prior to the accident that will prevent the applicant from achieving maximal recovery within the $3,500.00 guideline.

Given that the applicant carries the onus of establishing that he is entitled to treatment beyond the $3,500.00 limit, and all the medical evidence, with the exception of one treating physician, agrees that the applicant suffered predominantly minor injuries, the Arbitrator determined that the applicant sustained predominantly minor injuries in the accident and is not entitled to payment of any of the amounts in issue.

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.