Benefitis can be retroactively approved in case where injuries clearly fall outside MIG - YCTT v Certas LAT 16-000872

August 02, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

YCTT v Certas LAT 16-000872

Date of Decision: June 8, 2017
Heard Before: Adjudicator Claudette Leslie

ENTITLEMENT TO BENEFITS:  Are the injuries within the MIG? Can you be retroactively considered eligible for benefits?

Y.C. T-T. was injured in a car accident on November 27, 2013. She was the passenger in a car when another car t-boned them. The airbag deployed, and YCTT was taken to hospital by ambulance after describing being thrown forward and backward. X-rays revealed no broken bones. The day after the accident, she visited her family doctor complaining of chest and neck pain. The doctor assessed, among other things, tenderness including at 3rd and 7th costal (rib) cartilage.
 

Following the accident YCTT continued to experience what she describes as severe pain, and in December 2013, within 1 week of the accident, with Certas’s approval, she started receiving physiotherapy treatments twice per week. She continued to receive treatment for pain reduction, approved by Certas, up to March 2014 when Certas denied approval of further treatment on the basis YCTT had sustained predominantly minor injuries and had reached the limit of $3,500.00 for medical and rehabilitation benefits.   

In August 2014 Certas determined that YCTT’s injuries qualified for treatment above the MIG limit of $3,500.00. Despite this change in position, Certas declined payment of treatment plans dated March 11, 2014, June 21, 2014, expenses which were submitted March 15, 2016; costs submitted May 2016 in the amount of $100.00 for replacement of eyeglasses, and attendant care services assessment costs of $921.22, submitted April 3, 2014.

YCTT disagrees with Certas’s decision and applied to the LAT for an order requiring Certas to pay the outstanding benefits claimed; as well as applicable, accrued interest. Certas submits she is not entitled to the benefits claimed.

Issues:

1. Is YCTT entitled to receive a medical benefit in the amount of $1,386.32 for physiotherapy services in a treatment plan dated March 11,2014, and denied by Certas on March 31, 2014?
2. Is YCTT entitled to receive a medical benefit in the amount of $2,100.60 for chiropractic services in a treatment plan dated June 21, 2014, and denied by Certas on July 8, 2014?
3. Is YCTT entitled to receive a medical benefit in the amount of $500 for physiotherapy and acupuncture servicessubmitted in an expense form on March 15, 2016; and denied by Certas?
4. Is YCTT entitled to payment for eyeglasses in the amount of $100.00 submitted in an expense form?
5. Is YCTT entitled to payment for the cost of examination in the amount of $921.22  for  an  Attendant  Care  Assessment  (Form  1) in a treatment plan dated April 3, 2014, and denied by Certas on April 14, 2014?
6. Is YCTT entitled to interest on any outstanding payment of benefits?
7. Is YCTT entitled to costs?

Preliminary issue:

The submissions provided raise a preliminary issue as to whether YCTT can retroactively be entitled to treatment plans submitted, before she was taken out of the MIG regime. In this case, YCTT submitted treatment plans to Certas in March and April 2014.  Certas made the decision that, pending the outcome of Certas’s examinations, her injuries fell within the MIG and as such, she qualified for treatment of up to $3,500.00. Later, in August 2014, Certas decided that YCTT’s injuries were outside of the MIG, and instead they fell under the non-MIG regime. Certas’s change of mind was due solely to the outcome of an insurer’s examination conducted in July 2014.

Section 18 of the Schedule makes it clear that the $3,500.00 MIG limit does not apply in a case, such as this, where a health practitioner determines that a person’s accident-related injuries  no longer meets the MIG classification, and requires treatment that goes beyond the amount allowed under the MIG limit. In such cases, the legislation allows the insured person to seek treatment outside the scope of the MIG, of up to $50,000.00, if their impairment is not of a catastrophic nature.

The Arbitrator noted it is necessary to interpret the legislation in a reasonable fashion. Clearly Certas’s denial of the treatment plans at the time, was based on a belief that YCTT`s injuries fell within the MIG; until such time as Certas had medical evidence that determined otherwise. Based on medical proof, the IE, Certas was satisfied that as of July 2014 YCTT’s injuries had progressed beyond those classified under the MIG.  As a result, YCTT’s injuries qualified for treatment beyond the $3,500.00 MIG limit. Certas could not then continue to maintain its denial of the treatment plans, on the basis of its initial belief for the following two reasons:

1. in the spirit of the overall benefit scheme, and at least as of the date Certas found YCTT’s injuries no longer met the MIG classification, it was obligated to re-consider the submitted treatment plans under the non-MIG regime. To do otherwise, or to maintain its denial of the treatment plans based on its initial belief of the classification of YCTT’s injuries and in light of proof to the contrary, would undermine the purpose of the benefit scheme to allow access to appropriate treatment.
2. The totality of the evidence before the Arbitrator shows that YCTT’s impairments should not have been classified as being within the MIG at the time of submission of the treatment plans in March and April 2014. The fact that Certas’ medical examiners came to the same conclusion just months later, supports the conclusion that her injuries were likely outside of the MIG classification in March and April 2014; as it is unlikely that she developed chronic pain, which moved her out of the MIG classification, the week of Certas’s examination.

On this basis it is unreasonable to deny consideration of the treatment plans, or of YCTT’s injuries under any other than the non-MIG regime.

Result:

1. YCTT is entitled to the treatment plans dated March 11, 2014($1,386.32), June 21, 2014($2,100.60), for physiotherapy and chiropractic services;
2. YCTT is entitled to the cost of an examination in the amount of $921.22 for an Attendant Care Assessment form in a treatment plan dated, April 3, 2014; and
3. YCTT is entitled interest on all outstanding benefit payments as per the Schedule.
4. YCTT is not entitled to costs of $100.00 for eyeglasses claimed in January 2016; and
5. YCTT is not entitled to out of pocket expense submitted on March 15, 2016 in the amount of $500 for physiotherapy and acupuncture services.

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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.