January 19, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
16-001990 v Aviva Insurance, 2017 CanLII 81613 (ON LAT)
Decision Date: November 24, 2017
Heard Before: Adjudicator Paul Gosio
MIG and ENTITLEMENT TO BENEFITS: applicant provides no diagnosis of chronic pain; applicant's testimony and evidence differ; applicant's injuries fall within MIG
The applicant was injured in a car accident on February 1, 2015. She was in the back seat when the car she was in was rear ended. She was examined by emergency medical service personnel at the scene but declined to be transported to the emergency room as her primary concern was with her infant son who was also in the vehicle. As a result of the accident she suffered both physical and psychological impairments. Her physical impairments include neck pain, lower back pain that radiates down both legs, headaches and right knee pain. Her psychological impairments include an adjustment disorder with anxiety, depressive disorder as well as a specific phobia with respect to travelling in a vehicle.
The applicant sought benefits pursuant to the SABs but when Aviva denied claims once she reached the MIG limit she applied to the LAT. The applicant also sought IRBs which Aviva denied as they take the position the applicant does not suffer from a substantial inability to perform the essential task of her pre-accident employment.
- Are the applicant’s injuries subject to the MIG?
- Is the applicant entitled to receive a medical benefit in the amount of $1,966.22 for chiropractic services in a treatment plan dated August 13, 2015?
- Is the applicant entitled to receive a medical benefit in the amount of $3,220.00 for an orthopaedic mattress in a treatment plan dated September 10, 2015?
- Is the applicant entitled to receive an IRB in the amount of $400.00 per week for the time period from August 5, 2015 to present and ongoing?
- Is the applicant entitled to interest on any overdue payment of benefits?
- The applicant has not met her onus of establishing on a balance of probabilities that her injuries fall outside the confines of the MIG due to a pre-existing injury, her chronic pain and/or her psychological impairment.
- The applicant has not met her onus of establishing on a balance of probabilities that she suffers a substantial inability to perform the essential task of her employment and as a result is not entitled to an income replacement benefit.
- No interest is payable.
The applicant carries the onus of establishing, on a balance of probabilities that she falls outside the confines of the MIG and that she is entitled to the medical and income replacement benefits in dispute.
In this case, the applicant asserts that she suffers from a pre-existing medical condition related to the pregnancy and child birth of her son and that this condition entitles her to treatment beyond the $3,500.00 cap. Specifically, the applicant testified at the hearing that she declined to take medication prescribed to her because she was breastfeeding at the time and was concerned about the effect the prescribed medication might have on her infant son and on her ability to produce breast milk.
The applicant did not call a healthcare practitioner to testify at the hearing, nor did she submit a report from a healthcare practitioner, who could speak to the alleged pre-existing condition and its effect on the applicant’s ability to achieve maximal recovery within the $3,500.00 guideline.
The applicant testified that she suffers from lower back pain which radiates down both her legs, and that this impairment takes her outside the confines of the MIG as this is not predominantly minor in nature. In December of 2016, she advised psychological therapist Danielle Jeffery that the pain radiating down her legs registers as 10/10 on the pain scale with 10 being the most pain one can experience. The medical evidence, along with the applicant’s self-report contradicts this assertion.
An orthopaedic IE indicated that the applicant sustained soft tissue injuries as a result of the car accident and that there was no evidence of any ongoing orthopaedic impairment. Another IE by a GP supported the diagnosis of soft tissue injuries to her neck and back due to the accident. In addition to this the report noted the applicant specifically denied suffering from any radicular symptoms during her examination.
The applicant’s treating family physician noted on February 5, 2015, that the applicant had a good range of motion in her neck and back….and had a negative straight leg test. There was no portion of CNR indicating that the applicant complained about suffering from lower back pain which radiated down both her legs.
The Arbitrator preferred the IE reports as evidence.
When reviewing the claim for chronic pain the Arbitrator reviewed the applicant’s testimony and the evidence. The Arbitrator noted that there was little evidence to support the claim of chronic pain, and no diagnosis was provided.
The Arbitrator reviewed the claim that psychological impairments should remove the applicant from the MIG. The applicant failed to establish on a balance of probabilities that her injuries fall outside the confines of the MIG. On this basis the Arbitrator found that the applicant’s injuries remain predominately minor in nature and therefore subject to the confines of the MIG.