June 06, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
MK and Aviva Insurance Canada, 2018 CanLII 13164 ON LAT 17-003608
Date of Decision: February 13, 2018
Heard Before: Adjudicator Robert Watt
MIG and NEB: applicant fails to make case for NEB; applicant fails to attend IEs; applicant's injuries fall within MIG;
The applicant was involved in a car accident on January 6, 2013, when his vehicle was hit by another car. His car spun around, and the airbags deployed. His knees hit the dashboard and the back of his neck hit the head rest. He went to the hospital the same day and was given medication for pain management. He returned to work approximately four weeks after the accident. Aviva classified the injuries as falling within the MIG and paid $3,411.34 in medical benefits.
Three years after the accident the applicant submitted a Disability Certificate applying for NEBs , and in 2016 the applicant submitted a treatment and assessment plan proposing $8000.00 in chronic pain treatment but refused to attend a section 44 assessment.
Aviva declined funding in an EOB dated April 8, 2016 and requested an IE. Its explanation for denial was that the applicant had not provided compelling evidence that the impairment sustained was not predominantly a minor injury. Aviva scheduled a psychological assessment on April 26, 2016, and a physiatry assessment on May 20, 2016.
The applicant refused to attend either appointment, on the basis that the notice was not proper, taking the position that it dealt only with MIG issues. The applicant applied to the LAT for resolution of disputes over the benefits.
- Is the applicant in non-compliance with section 44 of the Schedule for refusing to attend an insurer’s examination? If so, what is the period of non-compliance?
- Is the applicant prohibited from bringing a claim for NEBs because he did not suffer a complete inability to carry on a normal life within 104 weeks after the accident?
- Do the applicant’s injuries fall within the MIG?
- Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period September 28, 2016 to-date, and ongoing?
- Is the applicant entitled to receive a medical benefit in the amount of $7,945.17 for physiotherapy in a treatment plan dated March 28, 2016?
- Is the applicant entitled to interest on any overdue payment of benefits?
- The applicant is in non-compliance with section 44 of the Schedule and as a result of the applicant’s non-compliance, he is not permitted to proceed with his application for a medical benefit in the amount of $7,945.17 for physiotherapy.
- The applicant has not suffered a complete inability to carry on a normal life as a result of, and within 104 weeks after the accident. The applicant is not entitled to receive a non-earner benefit in the amount of $185.00 per week for the period September 28, 2016 to-date, and ongoing.
- The applicant’s injuries fall within the MIG.
- The applicant is not entitled to any interest.
Section 44 of the Schedule permits an insurer to require an insured to be examined by a regulated health professional to determine if the insured is entitled to benefits. The notice for any IE has to set out the medical and any other reasons for the examination and the particulars of the examination (date, time, location, who will conduct the exam, etc.). The courts have held that if an insurer believes that the MIG applies, it must indicate in the notice the following information: that it has reviewed the treating health practitioner’s opinion; has reviewed the MIG and compared it to the treating health practitioner’s opinion; and concluded that in its view, the applicant’s treating health practitioner has not provided compelling evidence that the applicant’s injuries fall outside the MIG.
If the insured fails to attend the IE, then pursuant to Section 55(1)2 of the Schedule, the insured shall not proceed with an application to the Tribunal until the insured has complied with Section 44.
The Adjudicator reviewed Aviva’s letter dated April 8, 2016 and concluded that Aviva’s EOB meets all of the requirements for proper notice.
The applicant did not address the Section 44 issue in his written submissions. He did not provide any evidence as to why he did not attend the IE or in what way the notice was deficient.
On that basis the Adjudicator found that the applicant is prevented from proceeding with his application, until he complies with the Section 44 request by Aviva.
The Adjudicator then turned to the NEB application and noted that the onus is on the applicant to prove his case. The Adjudicator noted that there was not sufficient evidence before to show that the applicant suffered a complete inability to carry on a normal life as a result, and within 104 weeks, of the accident.