Applicant's injuries fall within MIG - LAT 16-004175 JD v Aviva

February 05, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

JD v Aviva LAT 16-004175  2017 CanLII 81574 (ON LAT)

Decision Date: November 22, 2017
Heard Before: Adjudicator Robert Watt

ENTITLEMENT TO BENEFITS and MIG: The applicant’s injuries fall within the MIG; no further beneftis awarded

JD was injured in a car accident on June 25, 2014. She applied for accidents benefits from Aviva.

Benefits were paid up to the maximum allowed under the MIG. JD applied to the LAT seeking benefits beyond the MIG on the basis that she had a pre-existing medical condition.

Issues:

1. Is JD entitled to the cost of an in-home assessment outlined in a treatment plan dated November 8, 2014 in the amount of $1,426.89?
2. Is JD entitled to a medical benefit outlined in a physiotherapy treatment plan dated January 19, 2015 in the amount of $1,860.68?
3. Did JD sustain predominately minor injuries as defined under the Schedule?

RESULTS

1. JD is not entitled to the cost of an in-home assessment outlined in a treatment plan dated November 8, 2014 in the amount of $1,426.89.
2. JD is not entitled to a medical benefit outlined in a physiotherapy treatment plan dated January 19, 2015 in the amount of $1,860.68.
3. JD did sustain predominately minor injuries as defined under the Schedule.

The Arbitrator reviewed the law, and the evidence and noted that the entire case is based on whether the injuries fall within the MIG. The onus is on the applicant to show that the injuries exceed the MIG and that the treatments sought are reasonable and necessary. The Arbitrator also noted that based on previous decisions, “….Only in extreme limited circumstances where compelling evidence provided by a health practitioner before the accident, and that will prevent a person from achieving maximal recovery from the minor injury for the reasons described above, is the person’s impairment to be determined not to come within this Guideline”.

JD is 44 years of age and had suffered work injuries in 2007 and 2012 and was apparently in a motor vehicle accident in 2000. JD has a history of neck problems resulting from the previous work injuries, and a previous accident, and has incurred some recent left shoulder pain. JD sought funding on November 8, 2014, for an in home Occupational Therapist Assessment. The respondent denied this, on the basis that an insurer is not required to pay for an assessment or examination conducted in the insured’s home, unless the insured has sustained an impairment that is not a minor injury.

JD sought additional physiotherapy in January 2015, which was denied by the respondent, on the basis that the respondent believed JD’s impairments were predominantly due to a minor injury. JD’s family doctor referred JD to a pain clinic in August 2016.  The report from the pain clinic, indicated that JD had some rotator cuff impingement tendonitis pain, but not resulting from the accident.  He gave her an injection of cortisone and recommended home exercises.

An orthopaedic surgeon saw JD on April 7, 2015, for an IE.  At that time, he found soft tissue injuries to her neck and to her lower back, and concluded that the injury fell under the MIG. He also concluded that JD was not substantially disabled from performing her pre-accident employment. There was no left shoulder pain noted at this time, at this examination. Another IE was performed on May 26, 2017 which again found no compelling evidence that JD had a pre-existing medical condition that would prevent her from achieving maximum medical recovery, if she were subject to the MIG guidelines of $3500.00.  The report also noted that she was now using medically prescribed marijuana.

Based on the medical evidence the Arbitrator ruled that JD’s injuries fall within the MIG.

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.