April 11, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Applicant and Aviva Insurance Canada LAT 17-001007 2018 CanLII 2309
Date of Decision: January 18, 2018
Heard Before: Adjudicator Robert Watt
MIG: applicant fails to show any diagnosed pre-existing injury that would remove her from the MIG; applicant fails to provide diagnosis of any injury that removes her from the MIG
The applicant was hurt in a car crash on April 22, 2015 and sought benefits from Aviva pursuant to the SABS. When Aviva refused to pay for certain benefits and the applicant applied to the LAT for arbitration.
- Are the applicant’s injuries predominantly minor injuries as defined in the Schedule?
- Is the applicant entitled to a medical benefit in the amount of $3,132.36 for chiropractic submitted on June 11, 2015?
- Is the applicant entitled to a medical benefit in the amount of $2,968.64 for chiropractic treatment submitted on October 1, 2015?
- Is the applicant entitled to interest on the overdue payment of benefits?
- The applicant’s accident-related injuries fall within the MIG.
- The applicant is not entitled to medical benefits in the amounts of $3,132.36 and $2,968.64, for chiropractic treatments.
The SABS defines a minor injury to include sprain strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. Treatment for any minor injury impairment is limited to $3500.00.
The onus is on the insured to prove, on a balance of probabilities that the MIG does not apply. Treatment plans must be reasonable and necessary.
The applicant was in a T-bone collision on April 22, 2015. She had to be extricated from her car, and was taken to the hospital by ambulance. She complained of left neck pain, shoulder pain, mild left arm numbness and a headache. Both the ambulance report and the hospital emergency report indicated there was some neck and shoulder pain complained of, but nothing more serious.
The applicant relies on two reports as the basis of her removal from the MIG. The reports indicate that the applicant has a pre –accident sciatic nerve problem, suffers from anxiety since the accident, has chronic post traumatic headache, and she cannot function at full capacity. The noting of the applicant’s pre-accident sciatic nerve problem was not based on the doctor’s direct expertise or during his care pre-accident.
Aviva submits that the applicant’s injuries fall within the MIG. Aviva relies on the insurer’s examination which conclude that the applicant suffered minor injuries.
CNRs from the applicant’s family doctor indicate that that the applicant went on a camping trip, travelled to Nova Scotia around August/ September 2015, and also flew to Jamaica in December 2016. The family doctor saw the applicant over 15 times for issues other than myofascial pain after the accident.
Upon review of the evidence the Adjudicator found that the applicant has not presented any pre-accident medical evidence by a health practitioner to show a pre-existing medical condition. The applicant had kidney disease/sciatic nerve/hypertension/overweight, but there is no evidence that they prevent maximal recovery under the MIG.
On this basis the applicant has failed to prove any impairment sustained from the accident that would take her outside of the MIG, or that she had pre-existing medical conditions that would prevent maximal recovery under the MIG.