Psychological impairments place applicant outside MIG - Applicant v Motor Vehicle Accident Claims Fund (MVACF) LAT 17--000665

December 14, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v Motor Vehicle Accident Claims Fund (MVACF) LAT 17--000665, 2017 CanLII 76920 (ON LAT)

Decision Date: October 18, 2017
Heard Before: Robert Markovits

MINOR INJURY and ENTITLEMENT TO BENEFITS: Applicant falls outside of MIG due to psychological impairments; treatment plans were reviewed to determine which are reasonable and necessary;

The applicant was injured in a car accident on March 2, 2014 and applied for SABs from MVACF. When benefits were denied and mediation failed, the applicant applied for arbitration to the LAT.

Issues:

1. Are the applicant’s injuries considered minor injuries as described in the Schedule and subject to the coverage limits of the MIG?
2. Is the applicant entitled to receive a medical benefit in the amount of $1,606.80 for chiropractic services in a treatment plan submitted April 17, 2015?
3. Is the applicant entitled to receive a medical benefit in the amount of $1,405.10 for chiropractic services in a treatment plan submitted August 24, 2015?
4. Is the applicant entitled to receive a medical benefit in the amount of $1,285.10 for chiropractic services in a treatment plan submitted December 9, 2015?
5. Is the applicant entitled to receive a medical benefit in the amount of $1,328.61 for chiropractic services, in a treatment plan submitted March 16, 2016?
6. Is the applicant entitled to receive a medical benefit in the amount of $1,328.61 for chiropractic services in a treatment plan submitted April 27, 2016?
7. Is the applicant entitled to receive a medical benefit in the amount of $1,328.61 for chiropractic services in a treatment plan submitted June 15, 2016?
8. Is the applicant entitled to receive a medical benefit in the amount of $2,887.14 for psychological services in a treatment plan submitted July 15, 2016?
9. Is the applicant entitled to receive a medical benefit in the amount of $1,285.10 for chiropractic services in a treatment plan submitted September 7, 2016?    
10. Is the applicant entitled to receive a medical benefit in the amount of $1,981.70 for a driving re-integration assessment in a treatment plan submitted June 3, 2015?
11. Is the applicant entitled to receive a medical benefit in the amount of $2,556.03 for a chronic pain assessment in a treatment plan submitted September 23, 2015?
12. Is the applicant entitled to receive a medical benefit in the amount of $1,994.72 for an orthopaedic assessment in a treatment plan submitted November 26, 2015?
13. Is the applicant entitled to interest for the overdue payment of benefit?
14. Is the applicant or respondent entitled to recover their legal costs?

RESULT

MIG Determination

1. The applicant’s injuries are not minor injuries and the accident benefits he is entitled to are not limited to the monetary cap of the Minor Injury Guideline.
2. The applicant is entitled to a partial payment for a treatment plan for chiropractic services, recommended by Prime Health Care Inc., in a treatment plan submitted April 17, 2015.
3. The applicant is entitled to payments for treatment plans including both chiropractic and physiotherapy treatments submitted August 24, 2015, December 9, 2015, March 16, 2016, April 27, 2016, June 15, 2016 and, September 7, 2016.
4. The applicant is entitled to payments for an orthopedic assessment submitted November 26, 2015.
5. The applicant is entitled to interest on all incurred payments.
6. The applicant is not entitled to payment for psychological services above the approved amount July 15, 2016.
7. The applicant is not entitled to payments for a driving re-integration assessment submitted June 3, 2015.
8. The applicant is not entitled to payments for a chronic pain assessment submitted September 23, 2016.
9. The applicant and respondent are not entitled to recover their legal costs for this hearing.

The applicant contends that the amount of the cost of the benefits he is seeking should not be restricted by the limitations specified in the MIG. He gives three reasons why.

• The respondent failed to respond to the applicant regarding the denied treatment and assessment plans in dispute in accordance with section 38(8), (9), (10) and (11). Insurers have 10 business days to respond to the treatment plan, and if the respondent believes that the impairments can be treated within the MIG, it must be indicated in the notice and the notice may indicate that the insurer requires the applicant to attend an examination by a health care professional examiner of the insurer’s choice.
• A number of treatment plans submitted were denied without being assessed properly. In addition, the insurer based its determination on an insurer’s examination (IE) report conducted to assess a treatment plan not raised as an issue in dispute in this application. The respondent did not reply to the treatment plan in accordance with section 38(8), which states that the insurance company shall respond to a treatment and assessment plan within 10 business days. Because the respondent failed to comply with section 38(8) of the Schedule they are barred from asserting that the applicant has an impairment to which the MIG applies and are liable to pay for all treatment plans in dispute. Finally, contrary to section 38(8), the respondent did not issue the mandatory Explanation of Benefits to explain why it denied these plans if it found that the treatment plans were not reasonable or necessary.
• Secondly, according to his doctors’ reports, the applicant is suffering from Chronic Pain as a result of the accident. This diagnosis removes limitations for treatment as prescribed by the MIG
• Lastly, the applicant contends that as a result of the accident, he is suffering from psychological impairments and so the insurance company is liable to cover cost of his treatment plans even though they may be above the MIG limitations.

The respondent asserts that all applications for treatment plans had been properly responded to and it provided treatment as deemed appropriate based on medical advice. Moreover, the applicant’s medical evidence corroborates that the applicant suffers from only soft tissue injuries. In addition, the denied treatment plans were not reasonable or necessary.

The Adjudicator reviewed the evidence and the law.  The first question ed is whether the impairments sustained are minor injuries subject to treatment within the MIG. If they are within the MIG, then all the other issues in dispute need not be dealt with.

The respondent submits that the applicant’s injuries are minor injuries and are governed by the MIG.  The applicant argues that that he has suffered psychological impairments as a result of the MVA. These psychological impairments can entitle him to receive benefits above the MIG cap. On review of the totality of the evidence the Adjudicator found find that the applicant has established that his injuries fall outside of the MIG because evidence show’s the applicant’s psychological impairments are not within the definition of ‘minor injury’ for the following reason.

The Arbitrator then reviewed the treatment plans and the medical evidence and determined which plans were reasonable and necessary.  

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.