February 24, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Minor Injury Guidelines (MIGs) - onus of proof on injured party to show injuries fall outside MIG; lack of medical evidence provided; injured party does not satisfy the burden of proof; no attendant care benefits awarded; no interest
Bennett and State Farm
Date of Decision: February 6, 2017
Heard Before: Adjudicator Jeffrey Musson
Caswell Bennett was injured in a car accident on October 14, 2013 and sought accident benefits from State Farm payable under the Schedule, however when the parties were unable to resolve their disputes Mr. Bennett applied for arbitration at the FSCO.
The issues in this Hearing are:
- Did Mr. Bennett sustain minor injuries within the meaning of the Minor Injury Guideline (“MIG”) and Schedule as a result of the accident?
- Is Mr. Bennett entitled to attendant care benefits in the amount of $705.95 per month, from October 14, 2013 until July 13, 2014?
- Is Mr. Bennett entitled to a cost of an examination for an attendant care needs assessment in the amount of $1,417.46?
- Is Mr. Bennett entitled to interest for the overdue payment of benefits?
- Mr. Bennett did sustain minor injuries within the meaning of the MIG and Schedule as a result of the accident.
- Mr. Bennett is not entitled to attendant care benefits in the amount of $705.95 per month, from October 14, 2013 until July 13, 2014.
- Mr. Bennett is not entitled to a cost of examination for an attendant care needs assessment in the amount of $1,417.46.
- Mr. Bennett is not entitled to interest for the overdue payment of benefits.
- State Farm is entitled to its expenses in respect of the Arbitration Hearing in the amount of $3,971.38.
EVIDENCE AND ANALYSIS:
When Mr. Bennett was rear-ended on October 14, 2013, he was wearing his seatbelt and no airbags deployed. No emergency services attended the scene and he drove his car home but it was then towed to a repair shop. The accident was reported to the police collision centre later on the day of the accident. Mr. Bennett did not go to the hospital on the day of the accident, however he did see his family doctor the day after.
Mr. Bennett was involved in a prior accident in 2011, where he suffered a fractured scapula. His injuries from the 2011 accident were healed by the time his second accident on October 14, 2013 occurred.
The onus is on Mr. Bennett to prove entitlement to benefits. Mr. Bennett must demonstrate that his injuries are more severe than the injuries that are defined as minor injuries in the MIG and Schedule. If Mr. Bennett is unable to prove this, then by default, Mr. Bennett’s injuries can be treated under the MIG in the Schedule.
Mr. Bennett testified on his own behalf. He stated that he is employed as a disc jockey, and as a general labourer for a property restoration company. Mr. Bennett testified that he only took 10 days off of work post-accident; when he returned, he was given light duties at the restoration company and with his disc jockey employment, he had assistance setting up the equipment. Mr. Bennett stated that this accident affected his life and that in order to recover from his injuries, he sought treatment in the form of physiotherapy and also home based exercises.
Mr. Bennett testified that his medical injuries were in his right shoulder and back. He confirmed there were no broken bones, tears in his tendons or joint damage. His injuries were soft tissue in nature. Mr. Bennett also testified that he required assistance with his personal care needs, and that his attendant care service provider only attended to him periodically and only for a five-month duration.
His testimony was unusually brief and lasted less than 30 minutes. He was the only witness called to testify in relation to his injuries and his requirement for attendant care benefits. No other evidence was submitted.
The Arbitrator reviewed the evidence presented by Mr. Bennet, and State Farms IE reports. The IE concluded that Mr. Bennett’s injuries were treatable within the MIG. Mr. Bennett scored a 5 out of 5 on the range of motion test that he administered, and that Mr. Bennett even confirmed to the doctor during the assessment that his injuries were 90% healed from the first accident. They ultimately concluded that the injuries fell within the MIG.
The burden of proof falls on Mr. Bennett to prove that his injuries do not fall within the MIG parameters. However, Mr. Bennett did not provide medical evidence that would show that his injuries could not be treated within the MIG.