Documented Medical Diagnosis Required to Establish Pre-Existing Condition
April 11, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
S.C.W.H. v Dominion: Minor Injury Guideline (MIG); burden of proof on applicant to show injuries are not minor; burden of proof on applicant to show documented evidence of a pre-existing condition;
Date of Decision: January 30, 2017-01-30
Heard Before Adjudicator: Samia Makhamra
S.C.W.H. was driving when she was involved in a car accident on June 4, 2014. She applied for and received benefits under the SABs. She now seeks payment for medical benefits including chiropractic and physiotherapy services, which Dominion as S.C.W.H. suffered injuries that fall within the MIG. Dominion takes the position as S.C.W.H.’s injuries are minor, her treatment is subject to a $3,500.00 cap within the provisions of the Minor Injury Guideline, and that it has paid this amount.
S.C.W.H. disagrees. She submits that her injuries are not minor, but, if they are, she suffers from a pre-existing medical condition that entitles her to funding for treatments in excess of the $3,500.00 limit. She also claims that Dominion breached procedure in its denials.
- Do S.C.W.H.’s fall within the provisions of the Minor Injury Guideline (the “MIG”)?
- Is S.C.W.H. entitled to medical benefits in the amount of $484 for chiropractic services as set out in a treatment plan (OCF 18), dated August 28, 2014?
- Is S.C.W.H. entitled to medical benefits in the amount of $2,392.40 for chiropractic services as set out in a treatment plan (OCF 18), dated December 18, 2014?
- Is S.C.W.H. entitled to payments for the completion of an OCF-3 in the amount of $200?
- Is S.C.W.H. entitled to interest for the overdue payment of benefits?
- The Arbitrator finds that S.C.W.H. suffered predominantly minor injuries as a result of the accident, and that she did not suffer from a pre-exiting medical condition that would take her treatment out of the MIG. Consequently, as she has exhausted the monetary limit for treatment, she is not entitled to the benefits that are in dispute. As there are no benefits owing, S.C.W.H. is not entitled to interest.
Analysis and reasons:
The Arbitrator reviewed the issue of whether S.C.W.H.’s injuries are minor and should be treated within the MIG.
- are her injuries from the accident predominantly minor in nature, and if so,
- is there a pre-existing medical condition that was documented by a health practitioner before the accident, which would prevent her achieving maximal recovery if subjected to the MIG limit?
The Arbitrator reviewed the evidence and determined that S.C.W.H. has not met the burden of proof on the balance of probabilities that her injuries are not minor. She is not entitled to the benefits in dispute.
|Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, LAT Case, LAT Decisions, Minor Injury Guidelines, Personal Injury
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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 toll-free at 1-866-414-4878.
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.