March 18, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
AP and Dominion 17-001651/AABS v Dominion Insurance, 2018 CanLII 2306 (ON LAT)
Date of Decision: January 3, 2018
Heard Before: Adjudicator Brian Norris
MIG: applicant's injuries fall within the MIG; insurer responds to treatment plans withing established timelines; pre-existing injuries are not worsened
AP was injured in a car accident on April 13, 2016 and sought benefits pursuant to the SABs. When Dminion refused to pay for certain medical benefits AP applied to the LAT for resolution of this dispute.
- Has AP sustained a minor injury and is subject to the $3,500.00 funding limit on treatment?
- Is AP entitled to a medical benefit in the amount of $1,158.00 for chiropractic services in a treatment plan (OCF-18) dated September 7, 2016?
- AP’s impairments as a result of the accident on April 13, 2016 are minor injuries as defined by the Schedule and are subject to the $3,500.00 funding limit on treatment.
AP was driving when he hit the curb to avoid another car. AP sought medical care and reported neck, back, shoulder and upper arm pain, rib and sternum strains, and headaches which were relayed to AP’s family doctor two days later, on April 15, 2016.
On May 2, 2016, AP submitted a treatment plan dated April 13, 2016 for treatment within the MIG. The treatment plan was approved by Dominion. A second treatment plan was submitted and also approved up to and exhausting the $3,500.00 MIG funding limit. AP submitted a third and a fourth treatment plans whcih Dominion denied on the basis that AP’s injuries which fell within the.
AP disputes Dominion’s denial of the third treatment plan and the MIG determination.
The Adjudicator undertook to establish whether AOs injuries fell within the MIG.
AP submits that Dominion is barred from taking the position that the MIG and the $3,500.00 funding limit applies because Dominion failed to reply to a treatment plan within 10 days of receipt as required by Schedule. The Schedule provides that if an insurer fails to respond within 10 days, then it can’t take the position that the MIG applies. AP submits R.H. and TD Insurance Meloche Monnex as the prevailing case in support of this argument. AP states that the treatment plan was submitted on November 30, 2016 but was not responded to until December 19, 2016. In support of its position, AP submitted reply correspondence from Dominion dated December 19, 2016.
Dominion submits that the issue of a delayed response should be dismissed as this argument was first advanced in AP’s initial written submissions of this hearing – not at any point before. Dominion relies on decisions of 16-000272 v. Aviva and S.C.W.H. v. Dominion as precedent to support its position. AP did not provide any reply submissions in response to Dominion’s position regarding an argument not previously raised.
The Adjudicator allowed AP’s submission on this argument as Dominion was provided an opportunity to respond to the argument and has provided a fulsome reply to it.
Dominion submits that while the treatment plan was dated November 30, 2016, it was not submitted to the insurer for review until December 13, 2016. In support, Dominion included a copy of the treatment plan which has the computer generated timestamp of the HCAI system which notes it was received on December 13, 2016. AP did not dispute the authenticity of Dominion’s evidence.
Having reviewed the evidence and reviewed the submissions of the parties the adjudicator found that the treatment and assessment plan dated November 30, 2016 was not submitted to Dominion until December 13, 2016, therefore Dominion did reply in accordance with the Schedule and is not barred from relying on the policy limits prescribed in the MIG.
AP submits that the documented pre-existing injuries preclude recovery within the MIG. AP submits that the medical evidence provided confirms a partial thickness tear of the left supraspinatus (shoulder) muscle or tendon, spurring of the upper cervical vertebrae, calcification of anterior to lower cervical discs, diffuse idiopathic skeletal hyperostosis in lumbar spine, and narrowing of discs and degeneration. AP submits an ultra sound report of the left shoulder dated April 11, 2016 as evidence of the partial thickness tear in the left shoulder.
Dominion submits that a partial thickness tear is expressly included within the MIG and is not a pre-existing impairment which would preclude AP’s recovery within the MIG. Additionally, Dominion submits that AP has not provided any argument or evidence that the pre-existing impairment(s) would preclude recovery within the MIG. Dominion also presented a medical opinion from a treating orthopaedic surgeon which concluded that AP had reached their pre-accident baseline and that additional facility based treatment is not warranted.
After reviewing the evidence the Adjudicator determined that AP has not provided any evidence or submissions on how these impairments could impede recovery within the MIG.
The Adjudicatro found that AP is not entitled to the September 7, 2016 treatment since AP has not established that the treatment plan is reasonable and necessary. AP did not include the treatment plan with their evidence. AP’s submissions did not address the stated goals of the treatment plan and did not speak to how the treatment plan will help achieve those goals.